Opinion
NO. 12-19-00287-CV
05-29-2020
IN THE MATTER OF J.E.W., A JUVENILE
APPEAL FROM THE COUNTY COURT AT LAW #1 HENDERSON COUNTY , TEXAS MEMORANDUM OPINION
J.E.W., a juvenile, appeals the trial court's order committing him to the Texas Juvenile Justice Division (TJJD) for an indeterminate period following the modification of his disposition. J.E.W.'s counsel filed a brief in compliance with Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State , 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.
See In re T .M., 583 S.W.3d 836, 837-38 (Tex. App.-Dallas 2019, no pet.) (conducting analysis pursuant to Anders v. California in appeal from trial court's modification of disposition and commitment of juvenile to TJJD).
BACKGROUND
On or about March 31, 2018, J.E.W. broke into a minivan to commit theft, put a powdery substance into the fuel tank of another vehicle, and attempted to start a fire on yet another vehicle.
On January 28, 2019, the trial court found that J.E.W. engaged in delinquent conduct in that he violated penal law by committing arson. The trial court adjudicated J.E.W. "delinquent" for the commission of this offense and placed him on probation for twelve months while "placed outside of the home at Cooke, Fannin, and Grayson County Post-Adjudication Facility until successful completion of Cooke, Fannin, and Grayson County Post-Adjudication Facility is obtained."
On July 3, 2019, the State filed its Second Petition to Modify Disposition, in which it alleged that J.E.W. violated the terms and conditions of his probation by (1) being discharged on June 11, 2019, from the Cooke, Fannin, and Grayson County Post-Adjudication Facility (the Grayson County facility) without having successfully completed the residential program and (2) violating the laws of the State of Texas in that he intentionally, knowingly and recklessly caused bodily injury to G.D. by striking him in the face or head with his hand or fist.
The trial court conducted a hearing on the State's petition. At the hearing, Henderson County Juvenile Probation Employee Blu Nicholson testified that J.E.W. was under the care of the Texas Department of Family and Protective Services (DFPS) and had been placed at Brookhaven Youth Ranch Facility, but he had gone "AWOL" on two occasions. He further testified that J.E.W. was discharged from the Grayson County facility on June 11, 2019. Nicholson testified that he recommended that J.E.W. be committed to TJJD because J.E.W. had failed at every least restrictive step for rehabilitation. Nicholson further testified that J.E.W. was given a Noble PACT Risk Assessment, based on which he is categorized as a "high risk to re-offend." Nicholson opined that were J.E.W. to be released, he could be a "danger to society."
Grayson County Facility Deputy Director Destry Hawthorne testified about the allegations which led to J.E.W.'s discharge from the Grayson County facility. According to Hawthorne, J.E.W. had been disobeying orders, had been assaulted, and had been in an assault. He generally described J.E.W., stating, "He was difficult, and he would typically talk back to staff, curse towards staff, [and he] created situations where he had to be restrained and put in confinement." He testified that J.E.W. had a reputation for receiving frequent daily incident reports and for the use of abusive language. He further testified that a return home to his mother would not be in J.E.W.'s best interests because he needed to remain in a structured environment. On cross examination Hawthorne stated that J.E.W. had one hundred one behavioral reports while he was at the facility—seventy-seven of these reports involved minor violations and twenty-four of these reports related to violations requiring that he be confined. Hawthorne stated that J.E.W. was among the top five percent of offenders at the facility based on incident reports.
Juvenile Supervision Officer and Boot Camp Supervisor for the Grayson County Facility Brewster Waddles testified that he filed an incident report on J.E.W. at the facility related to J.E.W.'s assaulting another juvenile, G.D. At this time, the State introduced a surveillance video, in which J.E.W. can be seen striking G.D. in the face with his fist while G.D. was sitting on the floor. Waddles further testified that in a conversation he had with J.E.W. about the matter, J.E.W. was boastful. He stated that J.E.W. generally was disrespectful, argumentative, and, at times, had to be restrained.
Smith County Juvenile Detention Center Supervision Officer Oscar Carbajal testified that J.E.W. had three reports for assault while in the Smith County Juvenile Detention Center, and that one of these underlying incidents involved J.E.W.'s striking another juvenile, which resulted in formal charges being filed against him. Retired Henderson County Juvenile Probation Director Bonny Turnage opined that placing J.E.W. in his home would not be beneficial or in his best interest.
J.E.W.'s mother testified on his behalf. She stated that the stipulation of evidence J.E.W. signed was incorrect, that he was at home on the night in question, and that he did not participate in the alleged incidents at all. She denied reports that both she and J. E. W. had overdosed on drugs. Instead, she testified that she had taken a Xanax on that occasion and simply was unresponsive. She explained that, at that point, J.E.W. stole a Xanax from her, took the medication, and accompanied her to the emergency room. There, he began to slur and stumble about, which resulted in his being taken from her home by DFPS. Nonetheless, she stated that she could care for J.E.W. and prevent his bad behavior. She further stated that she believes the violent behavior J.E.W. exhibited while in detention was "situational."
At the conclusion of the hearing, the trial court modified J.E.W.'s disposition and committed him to TJJD for an indeterminate sentence. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
J.E.W.'s counsel filed a brief in compliance with Anders v. California and Gainous v. State. In it, he states that he diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. He further relates that he is well acquainted with the facts in this case. In compliance with Anders , Gainous , and High v. State , 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978), J.E.W.'s brief presents a chronological summation of the procedural history of the case and states that his counsel is unable to raise any arguable issues for appeal. We likewise reviewed the record for reversible error and have found none.
In compliance with Kelly v. State , J.E.W.'s counsel provided J.E.W. with a copy of the brief, notified J.E.W. of his motion to withdraw as counsel, informed J.E.W. of his right to file a pro se response, and took concrete measures to facilitate J.E.W's review of the appellate record. See Kelly v . State , 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). J.E.W. was given time to file his own brief. The time for filing such a brief has expired and no pro se brief has been filed.
CONCLUSION
J.E.W.'s counsel requested leave to withdraw. See In re Schulman , 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. However, despite our having found no reversible error, we deny counsel's request to withdraw. See In re P .M., 520 S.W.3d 24, 27-28 (Tex. 2016). In In re P.M., the Texas Supreme Court held that the right to counsel in suits seeking the termination of parental rights extends to "all proceedings in [the Texas Supreme Court], including the filing of a petition for review." Id. at 27. The Texas Supreme Court is the Texas court of last resort in juvenile proceedings. See In re Hall , 286 S.W.3d 925, 927 (Tex. 2009) (orig. proceeding). Accordingly, applying In re P.M. to the circumstances of this case, we conclude that counsel's obligation to J.E.W. has not yet been discharged. See P .M., 520 S.W.3d at 27-28. If J.E.W., after consulting with counsel, desires to file a petition for review, counsel should timely file with the Texas Supreme Court "a petition for review that satisfies the standards for an Anders brief." Id .; cf. A .C. v. Tex. Dep't of Family & Protective Servs., No. 03-16-00543-CV, 2016 WL 5874880, at *1 n.2 (Tex. App.-Austin Oct. 5, 2016, no pet.) (mem. op.). We affirm the trial court's judgment. See TEX. R. APP. P. 43.2. Opinion delivered May 29, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the County Court at Law #1 of Henderson County, Texas. (Tr.Ct.No. JUV18-0019-CC1)
THIS CAUSE came to be heard on the appellate record and the brief filed herein, and the same being considered, because it is the opinion of this court that there was no error in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court that the trial court's judgment be affirmed; and that this decision be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.