In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-04-00138-CR
______________________________
JOSHUA BARLOW, Appellant
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V.
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THE STATE OF TEXAS, Appellee
                                             Â
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 01-F-0602-202
                                                Â
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Carter
O P I N I O N
            Joshua Barlow was convicted by a jury for the offense of murder. The jury found the allegation in the enhancement paragraph to be true and assessed Barlow's punishment at confinement for fifty years. The sufficiency of the evidence is not challenged.
            On August 13, 2001, William Norris was shot and killed. The medical examiner determined the cause of death was a gunshot wound to the head. Analysis of the fragments on the bullet determined it was fired from a Ruger 9mm firearm that Clint Gilbreath had given to Barlow on the day of the murder. Gilbreath testified that Barlow asked to borrow the gun for protection. The gun was returned to Gilbreath later that same evening. The evidence showed that Barlow told Jason Dillinger and Denny Ward that he "blew that bitch's brains out." Barlow took Dillinger and Rob Miller to the scene of the murder, where Norris' body was located.
            Barlow presents two issues, which pertain to the same subjectâthat the trial court precluded Barlow from cross-examining or allowing Barlow to present extrinsic evidence that four State witnesses were affiliated with a gang and thus had a potential for bias in their testimony. We affirm the judgment of the trial court.
Issues
            1.         Did the trial court preclude Barlow from cross-examining witnesses concerning their gang affiliation and was that error?
            To understand this issue, an explanation of the sequence of events is necessary. Before trial, Barlow moved to depose two State witnesses, Gilbreath and Ward. A pretrial hearing was conducted, at which time Barlow urged that these witnesses were accomplices. The trial court denied the motion to depose the witnesses, stating that the witnesses could invoke their Fifth Amendment rights. No issue is raised as to whether the court erred in denying the depositions.
            After the jury was selected, but before presentation of evidence, the State presented a motion in limine to prevent Barlow from presenting character evidence in the form of alleged gang membership or affiliation by any witness. Barlow argued that such activity was intended to show that witnesses Gilbreath, Dillinger, Miller, and Ward were part of a conspiracy. The trial court granted the motion in limine, but stated, if the court was shown the proper authority, it would revisit the issue. The court further stated that the motion in limine simply meant the parties should approach the bench and conduct a hearing outside the presence of the jury.
            The next morning, Barlow requested the court to reconsider its ruling. Barlow argued that "this is a Sixth Amendment issue." Barlow argued that the testimony of these four witnesses and their actions had been to protect the organization and themselves. The court once again stated, "[W]e're still at the limine stage. There's no evidence before the Court at all to be able to consider . . . . Let's get into the evidence and find out where it falls and see if something comes up that changes it." Further, the court stated that it was satisfied with its ruling on the motion in limine and "[i]f I hear something different, you know, that may change."
            The State's evidence was presented, including witnesses Gilbreath, Ward, Dillinger, and Miller. Barlow did not attempt to cross-examine any of the witnesses on the issue of gang affiliation or activity. Neither did Barlow request that a bill of exception be made outside the presence of the jury on those issues. Barlow did not attempt to proffer any testimony from any of the four witnesses. See Tex. R. Evid. 103(a)(2). Barlow now complains he was prevented from cross-examining the witnesses by the rulings of the court.
            We do not believe this issue has been preserved for appeal. The granting of a pretrial motion in limine does not preserve the error. For an error to be preserved with regard to the subject matter of a motion in limine, it is absolutely necessary that an objection be made at the time the subject is raised during trial. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994) (citing Gonzalez v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985)). Here, the court never ruled on the admissibility of cross-examination of the State's witnesses concerning gang affiliation. The issue was never presented to the court after it granted the State's motion in limine. The trial court stated on several occasions that the motion was an in limine motion only, that it did not have any evidence to consider, and that it would reconsider its rulings after hearing the evidence and if additional authorities were cited. The trial court was never presented with evidence to consider in determining whether cross-examination of these witnesses was proper and never excluded any proffered evidence.  See Garcia v. State, 106 S.W.3d 854, 857 (Tex. App.âHouston [1st Dist.] 2003, pet. ref'd), cert. denied, 541 U.S. 1013 (2004) (citing Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994)) (a ruling granting a motion in limine does not preserve error on appeal); Wilson v. State, 44 S.W.3d 602, 606 (Tex. App.âFort Worth 2001, pet. ref'd); McClelland v. State, No. 06-97-00018-CR, 1997 Tex. App. LEXIS 5729 (Tex. App.âTexarkana Oct. 31, 1997, no pet.) (not designated for publication). A ruling on a motion in limine that excludes evidence "is subject to reconsideration throughout trial" and in order "to preserve error an offer of the evidence must be made at trial." Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). The trial court did not commit error on this matter.
            2.         Did the court err in excluding the testimony of Jessica Vith concerning the gang affiliation of the witnesses?
            At the close of the State's testimony, Barlow presented, outside the presence of the jury, the testimony of Jessica Vith. She testified that she was familiar with Dillinger, Miller, Barlow, and Gilbreath and that "[t]hey were, at the time I was around, trying to get into the organization, the Aryan Circle." She further testified that she accompanied Miller and Dillinger to a national meeting of the Aryan Circle and that Gilbreath was also present. She also thought Ward was a member. She further stated she observed the members tell untruths in order to protect the image of the organization ("They've lied for each other to family members, other friends outside of that. They've protected one another.") This evidence was offered by Barlow "for the purposes of the record." The trial court ruled that the evidence was inadmissible and that the probative value was outweighed by the prejudicial effect.
            The evidence that a witness and the defendant are in the same gang has been held to bear on the witness' veracity and bias. United States v. Abel, 469 U.S. 45, 48â49 (1984) (Mills, a witness, and respondent's membership in the Aryan brotherhood support the inference that Mills' testimony was slanted or perhaps fabricated in respondent's favor.)
            Some courts of appeals in Texas have also considered this issue. In McKnight v. State, 874 S.W.2d 745, 747 (Tex. App.âFort Worth 1994, no pet.), the Fort Worth court stated:
In Abel, the Supreme Court held that the government could impeach a defense witness by showing that both the defendant and the witness were members of the Aryan Brotherhood, and that members were sworn to lie on behalf of each other. Abel, 105 S.Ct. at 465. Common membership of a witness and a party in an organization, even without proof that the witness or party has personally adopted its tenets, is probative of bias. Id. at 469. Therefore, evidence of McKnight's and Anderson's membership in the gang was properly admitted if it was admitted for the limited purpose of showing bias.
Id. Therefore, in certain situations, evidence of gang association may be relevant. Tex. R. Evid. 401.
            However, the evidence proposed in this case has some significant factual differences. In all of the cases cited to us, the witness was impeached with evidence that the witness and the defendant had common membership in an association whose members were sworn to lie on behalf of each other and, therefore, the testimony would demonstrate a bias in the witness' testimony on behalf of his fellow member. In this case, the rationale for evidence proposed was that the four testifying witnesses (Dillinger, Gilbreath, Miller, and Ward) were all members of a common gang, considered themselves brothers, and would lie for each other. However, the testimony also showed that Barlow was a member of the same gang. Utilizing this reasoning, Barlow also was a brother and, if the witnesses were biased by a common gang membership, Barlow would be one of the members that other members would try to protectâeven if it meant lying. Here, their actions were completely to the contrary. The witnesses testified Barlow admitted and bragged that he had killed Norris. Logically, it cannot be argued that, if these witnesses were biased due to gang membership, they would lie for each other, but would abandon another fellow member, Barlow. The facts here contrast with cases in which a witness supported the position of a defendant fellow gang member on trial such as in McKnight (McKnight's and Anderson's membership in the gang was sufficiently probative of Anderson's possible bias in favor of McKnight to warrant its admission into evidence).
            We hold that, under these circumstances, this evidence of gang membership is not relevant. "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. It cannot be said that this evidence would make it more or less probable that the witnesses were biased. On the one hand, it could be argued the witnesses would be biased on behalf of each other, but it is illogical that the same gang membership and beliefs would cause them to take a completely inconsistent position and not support another member, Barlow. The net result is that evidence of gang membership is not, in this instance, instructive concerning the bias of the witnesses. In determining whether evidence is relevant, courts look to the purpose for offering the evidence and whether there is a direct or logical connection between the offered evidence and the proposition to be proved. Pope v. State, 161 S.W.3d 114, 123 (Tex. App.âFort Worth 2004, no pet.) (citing Reed v. State, 59 S.W.3d 278, 281 (Tex. App.âFort Worth 2001, pet. ref'd). The only purpose for allowing the gang membership testimony was to show bias. When the underpinning of the bias is removed, the testimony merely shows that these four witnesses were members of a gangâevidence which is highly prejudicial.
            Even if the evidence has some relevance, Rule 403 mandates that a trial court determine if the "probative value is substantially outweighed by the danger of unfair prejudice." Tex. R. Evid. 403. Evidence is unfairly prejudicial when it has "an undue tendency to suggest that a decision be made on an improper basis." Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000). A Rule 403 analysis by the trial court should include, but is not limited to, the following factors: 1) how probative is the evidence, 2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way, 3) the time the proponent needs to develop the evidence, and 4) the proponent's need for the evidence. Id. at 240â41; Montgomery v. State, 810 S.W.2d 372, 389â90 (Tex. Crim. App. 1990) (op. on reh'g).
            In this case, the trial court indicated that the Rule 403 analysis excluded the testimony. In considering this ruling, we will address the factors that the Texas Court of Criminal Appeals has announced.
            1) How probative is the evidenceâas is shown in our previous discussion, we believe that the evidence has little, if any, probative value. The only rationale for the introduction of evidence of gang affiliation of these four witnesses was to show their bias. In this instance, they testified against their own gang member. The probative value is extremely low. Further, the evidence was not clear that they were members of the Aryan Circle, but were "trying to get into the organization."
            2) The potential of the evidence to impress the jury in some irrational, but nevertheless indelible wayâevidence of membership of the gang is highly prejudicial at the guilt/innocence stage. Galvez v. State, 962 S.W.2d 203, 206 (Tex. App.âAustin 1998, pet. ref'd) ("However, gang membership is highly inflammatory character evidence . . . ."). It is normally admitted for punishment purposes. Anderson v. State, 901 S.W.2d 946 (Tex. Crim. App. 1995). This factor would weigh heavily against admitting the evidence.
            3) The time the proponent needs to develop the evidenceâthe time required to present the testimony is relatively brief and would not weigh against its admission.
            4) The proponent's need for the evidenceâthere was no similar evidence admitted and, therefore, this factor would favor admission of the evidence.Â
            The trial court's decision is reviewed for an abuse of discretion. The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts presented are an appropriate case for a trial court's action. Rather, it is a question of whether the court acted without any reference to guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Montgomery, 810 S.W.2d at 380. We will not reverse a trial court's ruling on the admission of evidence as long as the ruling is within the zone of reasonable disagreement.  Id. at 391.
            We find that the trial court was within its discretion in denying the admission of the evidence. We affirm the judgment of the trial court.
                                                                        Jack Carter
                                                                        Justice
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Date Submitted:Â Â Â Â Â Â Â Â Â Â August 15, 2005
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â August 31, 2005
Publish
STRONG>A. Statutory Requirements
Section 54.04(i) of the Texas Family Code requires the juvenile court to make the requisite determinations in its disposition order regardless of whether there was a jury at the disposition hearing. See In re J.P., 136 S.W.3d 629, 630-31 (Tex. 2004) (holding under "plain language of the Family Code" that "if an initial disposition order places a child in [TYC] or on probation outside the home, it must expressly state that (1) removal from the home is in the child's best interests, (2) reasonable efforts were made to avoid removal, and (3) care and supervision the child needs to meet the conditions of probation cannot be provided at home"); In re T.A.W., 234 S.W.3d 704, 709-10 (Tex. App.--Houston [14th Dist.] 2007, pet. denied); In re E.C.D., No. 04-05-00391-CV, 2007 WL 516137, at *11 & n.14 (Tex. App.--San Antonio Feb. 21, 2007, no pet.) (mem. op.) (holding in memorandum opinion that under Section 54.04(i), trial court was required to make the three determinations even though jury had sentenced child to TYC at disposition hearing). (4) In reaching those determinations, the Texas Supreme Court has recently reminded courts that TYC is, as such a severe form of incarceration, reserved only for serious juvenile offenders. In re J.P., 136 S.W.3d 629, 632 (Tex. 2004).
In support of his contentions, counsel directs us to several cases involving intentionally violent acts by juveniles. In In re A.S., 954 S.W.2d 855 (Tex. App.--El Paso 1997, no pet.), the court concluded that there was no evidence that the mother could not provide the quality of care and level of support and supervision that the juveniles needed to meet the conditions of probation--despite prior (but now ended) gang involvement, and found an abuse of discretion in sending A.S. to TYC. In In re K.L.C., 972 S.W.2d 203 (Tex. App.--Beaumont 1998, no pet.), a court reversed a disposition to TYC despite evidence that the juvenile attacked others with a box cutter--with an extreme school disruption background and evidence that K.L.C.'s parent could not provide adequate supervision. The court found no evidence to support a finding that "reasonable efforts were made" to eliminate the need to remove him from the home. (5)
Nevertheless, after a juvenile has been adjudged to have engaged in delinquent conduct, the juvenile court has broad discretion to determine a suitable disposition. In re E.F.Z.R., 250 S.W.3d 173, 176 (Tex. App.--El Paso 2008, no pet.); In re C.J.H., 79 S.W.3d 698, 702-03 (Tex. App.--Fort Worth 2002, no pet.). We will not reverse the juvenile court's findings regarding disposition absent a clear abuse of discretion. E.F.Z.R., 250 S.W.3d at 176; C.J.H., 79 S.W.3d at 702-03. In conducting this review, we engage in a two-pronged analysis: (1) did the trial court have sufficient information upon which to exercise its discretion; and (2) did the trial court err in its application of discretion? In re M.A.C., 999 S.W.2d 442, 446 (Tex. App.--El Paso 1999, no pet.).
B. Standard of Review
The traditional sufficiency of the evidence issues become relevant factors in assessing whether the trial court abused its discretion. In re A.E.E., 89 S.W.3d 250, 256 (Tex. App.--Texarkana 2002, no pet.). As to orders of disposition, we will use the civil standard of legal sufficiency in our consideration of the abuse of discretion standard. In re T.E.G., 222 S.W.3d 677 (Tex. App.--Eastland 2007 no pet.). (6) To determine whether a trial court abused its discretion, we must decide whether the court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. In re B.N.F., 120 S.W.3d 873, 877 (Tex. App.--Fort Worth 2003, no pet.). Merely because a trial court has decided a matter within its discretionary authority in a manner different from how an appellate court would have ruled in a similar circumstance does not demonstrate an abuse of discretion. Sotelo v. Gonzales, 170 S.W.3d 783, 788 (Tex. App.--El Paso 2005, no pet.). An abuse of discretion does not occur where the trial court bases its decision on conflicting evidence. B.N.F., 120 S.W.3d at 877. Further, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court's decision. Sotelo, 170 S.W.3d at 788.
C. Evidence of Reasonable Efforts to Prevent Removal from Home
The evidence relevant to these issues, presented primarily from the juvenile probation officer, has previously been discussed at length. In summary, there is evidence that A.D. had been using alcohol (albeit without his parents' knowledge), that he had, with their knowledge, been driving without a license, and that they had removed him from public schooling in Texas at least in part by informing the authorities that he would be homeschooled--something they had no intention of doing.
When asked about the family, the probation officer stated that she did not think they provided enough supervision, they allowed A.D. to drive at age fourteen, did not require that A.D. attend public school, and the family would find it difficult to comply with the terms of probation because of what is expected in their community. She acknowledged that A.D.'s parents loved him and they had attended all sessions and meetings and that it is unusual for a child to have two parents actively involved in the proceedings. The psychologist who examined A.D. did not recommend confinement to TYC; alcohol treatment programs were available locally. Further, it is undisputed that A.D. had never before been referred to the juvenile authorities for alleged violations of the law and that his parents had been fully cooperative during the entire process. Since A.D. had never been involved in any juvenile offense, there had been no previous attempt to place him on probation at his home. (7) This case was handled in a most expeditious manner at the trial level. (8) After this offense occurred, there was no opportunity to determine if any form of alternative placement was feasible as A.D. was placed in confinement shortly after the offense occurred--where he has remained and is currently confined in TYC. (9) When asked if the family's cooperation with juvenile probation officials was important in considering placement of the juvenile, the probation officer responded, "I just feel like the seriousness of this offense warrants a TYC commitment."
In its brief, although the State has a section on reasonable efforts to prevent or eliminate the need for the child's removal from home, it directs us to little to support this requirement. The State points out that Kennedy testified that A.D. would remain at risk to himself absent treatment for alcohol abuse in a structured, monitored environment. The State mentions the family's failure to seek such treatment on its own and reiterates its points concerning the lack of supervision as shown by not being required to attend school and being allowed to drive without a license. Based on these factors, the State posits that it is clear the family cannot address A.D.'s treatment needs. The State concludes that the evidence is legally sufficient "that it was in Appellant's best interest to be placed in TYC." This is not the question on this portion of the finding; the question is whether there is any evidence of reasonable efforts made to prevent or eliminate removal of the juvenile from the home.
We have discussed the facts relative to A.D.'s home supervision. In considering whether reasonable efforts were made to eliminate the need to remove the juvenile from his home, the only other evidence to support the finding is the opinion of the juvenile probation department that such a placement would not work due to the family's culture. We do not believe this perception substitutes for factual evidence of some effort to avoid the need for the removal of the juvenile from the family home. We agree that a serious crime was committed resulting in the death of a young person. But we must apply the statutes as written, and we are not authorized to modify the requirements of the law.
There is no evidence to show that reasonable efforts were made to prevent or eliminate removing A.D. from his home. Indeed, there is no evidence any effort was made to avoid removing A.D. The trial court did not have sufficient evidence upon which to exercise its discretion to find that reasonable efforts were made to prevent or eliminate removal of A.D. from his home. In making that finding, the trial court abused its discretion. We sustain point of error number five.
Having found error in the disposition order, it is reversed and this cause is remanded for a new disposition hearing. Tex. Fam. Code Ann. § 56.01(i) (Vernon 2008).
Jack Carter
Justice
Date Submitted: April 22, 2009
Date Decided: May 15, 2009
OPINION ON MOTION FOR REHEARING
While the motion for rehearing raises no meritorious issues, we are compelled to write this addendum to point out an extremely misleading statement in the motion cited as if it were a quotation from this Court's opinion. The motion alleges that this Court reasoned that "the only evidence to support the finding is the opinion of the juvenile probation department that such a placement would not work due to the family's culture." In fact, the statement was that the only "other" evidence was the probation officer's opinion. This small omission makes a big difference.
In our opinion, we reviewed the entire testimony from the trial and surveyed at length summaries and quotations from the State's witnesses. A.D. had alleged that his constitutional rights of due process and equal protection were violated because of his religious affiliation, a claim we found was not asserted at trial and therefore was forfeited. Consequently, it was not necessary to recite the factual details supporting and resisting that claim. Nevertheless, we set out in great detail the State's evidence and contentions, and even inserted a footnote stating that such a lengthy discussion was presented because it pertained to other issues. In section III(C) of our opinion, we again summarized the State's evidence on this issue and stated that it had "previously been discussed at length." Our reference to the "only other evidence" was deliberate and intentional as the "other" evidence consisted of the extensive quotations and summaries of the evidence the State alleged supported the verdict. The State's motion for rehearing omits this reference to "other evidence" and suggests that we held the probation officer's opinion was the "only evidence" on the subject. This erroneous quotation dramatically changes the meaning of the sentence. Both the Texas Lawyer's Creed ("I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage."), (10) and the Texas Standards for Appellate Conduct (11) admonish counsel against making misrepresentations. We do note that the opinion is quoted correctly in the "Issue" statement and, therefore, we assume that the erroneous quotation in the body of the motion was not intentional, but the result of negligence.
Further, we did not state, as is quoted in the motion, that Kennedy's testimony allowed "only one inference." Our reference to the phrase "only one inference" is in a footnote which quotes the standard for review for legal sufficiency. We credited the State's evidence, including the testimony of the probation officer and every reasonable inference from that evidence that the State argued supported the trial court's findings, and disregarded contrary evidence because the contrary evidence did not lead to only one inference. Even under this test, there was no evidence to support the finding that reasonable efforts were made to prevent or eliminate removal of the juvenile from the home.
Finally, the State appears to abandon the argument that attempts were in fact made to avoid removal of the juvenile from the home. Instead, the State argues that the evidence is sufficient if the State proved that attempts to avoid removing the juvenile from his home "were, or would have been, unreasonable given the family's difficulties . . . ." The statute requires proof that if the court places a juvenile at the Texas Youth Commission, there must be proof that "reasonable efforts were made to prevent or eliminate the need for the child's removal from the home." With no citation to authority, the State effectively argues it does not have to prove the statutory requirements that reasonable efforts "were made" to avoid removal, but may merely show that efforts to avoid removing the child "were, or would have been, unreasonable . . . ." The statute is clear; this argument is unsound.
We deny the motion.
Jack Carter
Justice
Date: June 5, 2009
1. Tex. Fam. Code Ann. § 54.04(d)(3) (Vernon 2008) (commitment to TYC with possible
transfer to Texas Department of Criminal Justice).
2. The First Amendment to the United States Constitution provides in part, "Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."
U.S. Const. amend. 1. This provision applies to State action by virtue of the Fourteenth
Amendment to the United States Constitution.
3. We have recited the State's evidence in some detail even though we have found this point was waived, since the evidence is important in deciding other issues in the case.
4. In re J.G., 195 S.W.3d 161, 187 & n.5 (Tex. App.--San Antonio 2006, no pet.) (holding that even though jury sentenced juvenile to determinate sentence in TYC, only trial court could make the three determinations required to be in disposition order under Section 54.04(i)); In re A.W., 147 S.W.3d 632, 636 & n.1 (Tex. App.--San Antonio 2004, no pet.) (same); In re W.D.A., 835 S.W.2d 227, 230 (Tex. App.--Waco 1992, no writ) (reversing and remanding for new jury trial for juvenile's disposition hearing and stating that if jury found juvenile should be placed on probation outside the home or committed to TYC, then trial court would have to include the three mandatory determinations listed in Section 54.04(i) in its disposition order).
5. We also note the citation to In re S.G., No. 04-04-00475-CV, 2005 WL 763277 (Tex. App.--San Antonio Apr. 6, 2005, no pet.), in which that court decried a sentence to TYC--largely because it cost too much to locally care for the girl--the "probation resources" were not available locally.
6. The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at 822. The trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. Although we consider the evidence in a light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.
7. This offense occurred on December 2, 2007. The trial court entered a directive to apprehend A.D. on December 7, 2007. On December 11, 2007, the first of several detention orders was entered detaining A.D. in a juvenile detention facility. Other orders detaining A.D. were entered on December 27, 2007, and January 2, 2008. On January 7, 2008, A.D. entered a plea of true and was adjudicated. On that date, a jury was selected for the disposition trial. The verdict was returned the next day.
8. Unfortunately, the expeditious manner of this trial was not carried forward on appeal. Texas law requires that when a juvenile has been taken from the custody of his or her parents, that case has precedence over all other cases. Tex. Fam. Code Ann. § 56.01(h) (Vernon 2008). The court reporter's record was originally due May 9, 2008, but we granted the reporter an extension until June 9, 2008. The record was not filed and on motion for extension, we ordered the court reporter on July 24 to file the record by September 15, 2008. We amended that order, based on an allegation that the court reporter had surgery, and ordered the record filed by September 29, 2008. The record was still not filed and on December 3, 2008, we ordered the court reporter to appear in our Court and show cause why she should not be held in contempt of court. On December 8, 2008, the court reporter's record was filed with this Court. Following that, the briefs were filed, the last being on March 30, 2009, causing this case to be submitted to us on April 22, 2009. This twenty-one-page opinion was issued on May 15, 2009.
We acknowledge that some of this delay was due to our leniency in authorizing extensions.
We do not intend to make that mistake again. We call this requirement of expedited treatment in
these cases to the attention of court reporters and trial courts to warn that this Court will take the
necessary steps to ensure this type delay will not occur in the future.
9. Many such cases involve juveniles who have previously been unsuccessfully placed on some
form of probation or alternative placement. See, e.g., In re J.L.H., No. 10-08-00126-CV, 2009 Tex.
App. LEXIS 519 (Tex. App.--Waco Jan. 28, 2009, no pet. h.) (mem. op.) (previous offenses, ran
away from placement); In re J.A.S., No. 04-08-00173-CV, 2008 Tex. App. LEXIS 6908 (Tex.
App.--San Antonio Sept. 10, 2008, no pet.) (mem. op.) (additional delinquent conduct, left home);
In re D.L.T., No. 03-06-0069-CV, 2008 Tex. App. LEXIS 5217 (Tex. App.--Austin July 9, 2008,
no pet.) (mem. op.) (unsuccessful foster home placement, additional violations of law); In re A.M.O.,
No. 07-07-0284-CV, 2008 Tex. App. LEXIS 571 (Tex. App.--Amarillo Jan. 25, 2008, no pet.)
(mem. op.) (three-year juvenile delinquency history, new offenses while on probation).
10. The Texas Lawyer's Creed--A Mandate for Professionalism IV.6 (adopted by the
Supreme Court of Texas and the Texas Court of Criminal Appeals Nov. 7, 1989), reprinted in Texas
Rules of Court 759, 761 (West 2009).
11.