I must respectfully dissent to the majority's disposition of point of error two which complained of the lack of factually sufficient evidence "to commit the juvenile into the care and custody of the Texas Youth Commission." As I appreciate the mechanics of the Family Code provisions involved, K.L.C.'s complaint is with action taken by the trial court in the disposition hearing, not in the adjudication hearing. I will explain why this distinction is significant to me and to the ultimate result of the issue.
Section 54.03 of the Family Code describes the process that is due a juvenile who is facing allegations of having engaged in delinquent conduct or conduct indicating a need for supervision. The rights and privileges under § 54.03 are virtually identical to those provided to an adult criminal defendant facing a criminal trial. Significantly, the juvenile has a right to have a jury determine the issue of whether or not she engaged in delinquent conduct or engaged in conduct indicating a need for supervision. See § 54.03 (b)(6). Once a determination is made that the juvenile engaged in the prohibited conduct in question, the trial court "shall" set a date and time for the disposition hearing. See § 54.03 (h).
Section 54.04 of the Family Code contains the provisions describing the disposition hearing process. Section 54.04 (a) reads as follows:
(a) The disposition hearing shall be separate, distinct, and subsequent to the adjudication hearing. There is no right to a jury at the disposition hearing unless the child is in jeopardy of a determinate sentence under Subsection (d)(3) or (m) of this section, in which case, the child is entitled to a jury of 12 persons to determine the sentence. [emphasis supplied]
TEX. FAM. CODE ANN. § 54.04 (a) (Vernon 1996).
In the instant case, K.L.C. was not in jeopardy of a determinate sentence. Therefore, the statute totally precluded anyone except the trial judge from determining the placement of the juvenile. Having no right to a jury trial under the circumstances presented in the instant case, the trial court's decision as to placement of the juvenile must be reviewed under an abuse of discretion standard, not the legal sufficiency review standard used by the majority. The majority quotes from an opinion out of the El Paso Court of Appeals, In the Matter ofA.S., 954 S.W.2d 855, 861-62 (Tex.App.-El Paso 1997, no writ). I am uncomfortable with the El Paso Court's observation that while the trial court possesses broad discretion to determine a suitable disposition of a child who has been adjudicated to have engaged in delinquent conduct and that absent an abuse of discretion, the reviewing court will not disturb the juvenile court's finding, the reviewing court nevertheless is permitted to engage in a factual sufficiency review of whatever occurred at the disposition hearing.
Under the particular facts and procedural format of the instant case, once the jury found K.L.C. had engaged in delinquent conduct, § 54.04 mandated that her placement be determined by the trial court. In my humble opinion, the clear intent of the statute is that any placement decision made by the trial judge is to be reviewed by an abuse of discretion standard. See In theMatter of L.G., 728 S.W.2d 939, 944 (Tex.App.-Austin 1987, writ ref'd n.r.e.) [In challenging trial court's order of disposition in delinquency proceedings on appeal, juvenile must show that the trial court abused its discretion in making its disposition.] Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds for asserting error but are, on the other hand, relevant factors in assessing whether the trial court abused its discretion. See Doyle v.Doyle, 955 S.W.2d 478, 479 (Tex.App.-Austin 1997, no writ); D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex.App. — Fort Worth 1995, writ denied); Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.-Houston [1st Dist.] 1993, no writ). *Page 208
In the instant case, the trial judge clearly stated, on the record, that he was placing K.L.C. in the custody of the Texas Youth Commission "because it is in the best interest of you, the child; and the child's home cannot provide the quality of care and level of support, supervision that you need to meet the conditions of probation. Your educational needs will be met through the Texas Youth Commission." In making this decision, the trial court simply did not abuse its discretion in the matter. K.L.C. testified that she had been released once from juvenile detention. My interpretation of this was that the trial court was giving her "a chance." However, K.L.C. spoiled her "chance" and was brought back to detention because she violated the rules by corresponding with another girl who was in detention. The letter in question and written by K.L.C. contained information that K.L.C. was having sex while on "home detention" having her "chance" from the trial court. Although claiming not to be a "problem child," K.L.C. also admitted that she fought in school. State's Exhibit 4, which was admitted without objection by K.L.C., indicated that since 1994, K.L.C. had been referred to the office at her school several times for the following reasons: class disruption (two times); excessive tardiness (four times); disruption in the hall; fighting (two times); failure to obey the teacher; assault on a student; dress code violation; and insubordination (three times). The same exhibit, compiled by K.L.C.'s probation officer, indicated that her mother "appears to minimize the offenses against [K.L.C.]" K.L.C.'s father is currently incarcerated in the Texas Department of Criminal Justice — Institutional Division.
From the evidence presented to the trial court, reasonable efforts had been made to eliminate the need to remove K.L.C. from the home and send her to Texas Youth Commission. The chance that was provided to K.L.C. resulted in her violating the terms of her release and being sent back to detention. Based upon this as well as her history of disruptive behavior and apparent complete lack of parental guidance or concern, I simply cannot say that the trial court abused its discretion in placing K.L.C. with the Texas Youth Commission. Because the majority finds otherwise, I must dissent.