In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00118-CV
______________________________
DONELL WILLIAMS, Appellant
V.
ALEXANDER RAY TYRA, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 2006-573-A
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Donell Williams was arrested by law enforcement agents on drug charges August 29, 2001. Cash, guns, and other items were taken from him and were the subject of forfeiture proceedings. By a petition filed March 6, 2006, Williams brought suit against Maxey Cerliano (sheriff of Gregg County), Danny Butler (apparently a deputy sheriff of Gregg County), the Gregg Organized Drug Enforcement Unit, and Alexander Ray Tyra (an attorney whom Williams alleged represented him), alleging that much more money was taken from him than was turned in to the authorities; he alleged fraudulent conspiracy among all of the defendants and sought recovery under the federal Racketeer Influenced and Corrupt Organizations Act. One by one, the defendants filed motions for summary judgment, all of which were granted, until only Tyra remained.
On October 20, 2006, Tyra then filed a motion for summary judgment, to which Williams filed no response, although the certificate of service on the motion reflected that a copy of the motion had been sent to Williams on the same date the motion was filed.
Two judgments were signed on November 13, 2006: a judgment of dismissal with prejudice for want of prosecution and a summary judgment dismissing the claim against Tyra. Williams appeals from the judgment of dismissal with prejudice for want of prosecution and makes no mention of the order granting summary judgment.
The trial court, on the same day that it granted Tyra's motion to dismiss for want of prosecution, it also granted his motion for summary judgment, dismissing the suit brought against him by Williams. The trial court's docket sheet on that date first reflects that "Case called at docket call. Plaintiff failed to appear. DWOP" and then, in a second and separate entry, states, "Granted Tyra Motion for Summary Judgment." The court's record reveals that the clerk then sent Williams a notice of default judgment.
Although a docket entry cannot be used to contradict or prevail over a final judicial order, it can supply facts in certain situations. N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977). Here, the docket sheet shows that the trial court entered the summary judgment after the dismissal for want of prosecution. Under the Texas Rules of Civil Procedure, the trial court has plenary power to grant a new trial, or vacate, modify, correct, or reform a judgment within thirty days after signing a final judgment. See Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000).
There can only be one final judgment. Tex. R. Civ. P. 301. A trial court retains plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment within thirty days after the judgment is signed. Tex. R. Civ. P. 329b(d); First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984). In this case, the trial court acted within its plenary power in substituting the summary judgment for the judgment of dismissal for want of prosecution.
Since the order from which Williams has appealed is defunct, having been superseded, it is not a final and appealable judgment from which an appeal can be prosecuted. See Poulter v. Poulter, 565 S.W.2d 107, 109 (Tex. Civ. App.--Tyler 1978, no writ); Home Fund, Inc. v. Denton Fed. Sav. & Loan Ass'n, 485 S.W.2d 845, 848 (Tex. Civ. App.--Fort Worth 1972, no writ).
We dismiss the appeal for want of jurisdiction.
Bailey C. Moseley
Justice
Date Submitted: June 7, 2007
Date Decided: June 8, 2007
d discretion to determine the suitable disposition of the juvenile. See K.K.D., 2004 Tex. App. LEXIS 7166, at *5 (citing In re C.C., 13 S.W.3d 854, 859 (Tex. App.--Austin 2000, no pet.)). The statutorily required findings are stated in the following way:
(i) If the court places the child on probation outside the child's home or commits the child to the Texas Youth Commission, the court:
(1) shall include in its order its determination that:
(A) it is in the child's best interests to be placed outside the
child's home;
(B) reasonable efforts were made to prevent or eliminate the need for the child's removal from the home and to make it possible for the child to return to the child's home; and
(C) the child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation . . . .
Tex. Fam. Code Ann. § 54.04 (i)(1). In this case, those findings were explicitly made in the order of commitment and have not been challenged on appeal. Thus, the trial court had broad discretion in choosing the disposition for J.R.C. See C.C., 13 S.W.3d at 859.
The State also directs our attention to In re G.L.C.P., No. 02-06-00293-CV, 2007 Tex. App. LEXIS 3621 (Tex. App.--Fort Worth May 10, 2007, no pet.), and In re J.L.C., No. 2-06-00252-CV, 2007 Tex. App. LEXIS 3063, at *9 (Tex. App.--Fort Worth Apr. 19, 2007, no pet.). In G.L.C.P., the Fort Worth appellate court addressed a similar argument while determining whether commitment to the TYC was an available disposition. That court determined that the TYC was an available disposition and, after noting that the record showed that prior efforts to keep G.L.C.P. at home had failed, concluded that it was in his best interest to be placed outside the home and that the trial court had not abused its discretion by committing him to the TYC.
In J.L.C., the Fort Worth court refused to conclude that the trial court abused its discretion by finding that commitment was a more appropriate disposition in the absence of any testimony to show why the "Family Preservation" aspect of Tarrant County Juvenile Services would be a viable option. J.L.C., 2007 Tex. App. LEXIS 3063, at *9.
The San Antonio court of appeals was faced with a case having a different posture, in In re S.G., No. 04-04-00475-CV, 2005 Tex. App. LEXIS 2560, at *5 (Tex. App.--San Antonio Apr. 6, 2005, no pet.). In that modification case, the State's witness admitted (and the trial court found) that many local remedies had been exhausted and suggested it was time for the State, rather than the county, to begin paying for S.G.'s upkeep. The trial court modified the disposition from probation and committed her to the TYC. The appellate court found that the stated reason to send the juvenile to the TYC--making the State pay to care for S.G.--did not conform to the stated goals of the juvenile justice code and, thus, the trial court had no proper reason to commit S.G. to the TYC. Id. (4) The El Paso court of appeals also addressed a similar issue in a modification case in In re E.R.L., 109 S.W.3d 123 (Tex. App.--El Paso 2003, no pet.). The court considered itself "informed" by the required findings set out in Section 54.04(i), and then looked to see if there was evidence to support the decision of the trial court to place the juvenile in a program that was not the least restrictive available. The appellate court ultimately concluded that there was evidence supporting the trial court's decision to send E.R.L. to the TYC, even though other options were available.
Neither the State's premise nor its conclusion are supported by the cited cases. The State's comment that it did not have a duty to show that a TYC commitment was a superior result is correct. But that premise does not lead to the conclusion that evidence of the nature or existence of alternatives to TYC commitment is irrelevant, or that such a determination is effectively nonreviewable on appeal. None of the cases cited by the State explicitly takes the position argued by the State in this appeal, and we reject the proposition that the choice of disposition of a juvenile may never be reviewed by an appellate court--that only the decision to commit may be reviewed.
Modifying a juvenile's probation is a decision which is within the sound discretion of the trial court; such a decision can be reversed only on a finding that the trial court abused that discretion. Tex. Fam. Code Ann. § 54.05 (Vernon Supp. 2006); In re J.P., 136 S.W.3d 629, 632 (Tex. 2004); In re M.A., 198 S.W.3d 388, 390-91 (Tex. App.--Texarkana 2006, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably or without reference to guiding rules or principles. M.A., 198 S.W.3d at 391. A trial court does not abuse its discretion if some evidence supports the decision. J.L.C., 2007 Tex. App. LEXIS 3063, at *9; see Furr's Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 379 (Tex. 2001); see also Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex. App.--Fort Worth 1998, no pet.); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.--Houston [1st Dist.] 1993, writ denied). In other words, whether there is factually sufficient evidence to support the trial court's findings is a relevant consideration in determining whether the trial court abused its discretion. In re C.J.H., 79 S.W.3d 698, 702 (Tex. App.--Fort Worth 2002, no pet.); see Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Tex. Dep't of Health v. Buckner, 950 S.W.2d 216, 218 (Tex. App.--Fort Worth 1997, no writ).
We must review the sole appellate issue in light of the discretionary authority of the trial court. A trial court is not required to exhaust all possible alternatives before sending a juvenile to the TYC. M.A., 198 S.W.3d at 391. The Texas Family Code permits a trial court to decline third and fourth chances to a juvenile who has abused a second chance. J.P., 136 S.W.3d at 633.
This record contains some evidence about the nature of the STOP program, and some evidence about its potential usefulness in rehabilitating J.R.C. There was also evidence, however, that J.R.C. had failed to complete one type of local program successfully, and the managers of that program indicated that he had not altered his behavior. There was evidence that J.R.C. was on the receiving end of the hostility of other students at Brookhaven because he provoked them. There is nothing shown by this record that would require the trial court to commit J.R.C. to STOP rather than to the TYC. The evidence was thus not such as to require us to conclude that the trial court abused its discretion by deciding to commit J.R.C. to the TYC.
We affirm the judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 2, 2007
Date Decided: October 11, 2007
1. STOP provides a residential environment option for certain male juveniles who have been adjudicated for sexual conduct and have been ordered to participate in residential treatment before they return home.
2. The document involved--as the witness explained--incorrectly stated that his counseling with Debra Moore had ended unsuccessfully, rather than simply noting that there was a change in counselor.
3. As support for its argument, the State analogizes to the procedure followed in adult convictions. It argues that appellate courts would not review whether a defendant was sentenced to a particular type of imprisonment, or in a particular type of facility. Thus, the State posits, the particular disposition made in a juvenile case should not be reviewable.
4. See In re L.D., No. 12-06-00193-CV, 2007 Tex. App. LEXIS 1714 (Tex. App.--Tyler Mar. 2, 2007, no pet.). In that appeal, the monetary problem was also raised, but the trial court had made explicit findings that the child was a danger to the public, and it was apparent that the court had considered the progressive sanction guidelines found in Sections 59.005-59.015 of the Texas Family Code, and decided that deviating from those guidelines and committing L.D. to the TYC was appropriate. Thus, the appellate court concluded that the trial court did not abuse its discretion by so deciding.