Opinion
No. 04-05-00605-CV
Delivered and Filed: April 5, 2006.
Appeal from the 386th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-Juv-02206, Honorable Laura Parker, Judge Presiding.
The Honorable Laura Parker approved the recommendations of Associate Judge Pat Garza who presided over the hearing on the State's amended second motion to modify disposition.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
S.G.V. appeals the trial court's judgment modifying his disposition and committing him to the Texas Youth Commission. S.G.V. contends the trial court erred in excluding certain evidence and that the evidence is factually insufficient to establish that S.G.V. violated two of the conditions of his probation. We affirm the trial court's judgment.
Background
In October of 2004, S.G.V. was found to have engaged in delinquent conduct by committing the offense of terroristic threat. Pursuant to a plea bargain, S.G.V. was placed on probation in his father's custody for nine months. In February of 2005, the State filed a motion to modify S.G.V.'s disposition, alleging that S.G.V. had violated the conditions of his probation. Pursuant to a plea bargain, S.G.V. pled true to the violations and was continued on probation in his father's custody for an extended period of twelve months from March 28, 2005. On June 10, 2005, the State filed a second motion to modify disposition, alleging that S.G.V. had violated the conditions of his probation by violating his curfew and by carrying or possessing a deadly weapon on June 2, 2005. The State later amended the motion to allege that S.G.V. also evaded detention by fleeing from a peace officer attempting to lawfully detain him. S.G.V. pled not true to the violations.
Officer Bartolo Cabriales, a juvenile probation officer, and Officer Benjamin Ramos, Jr., a deputy sheriff, were the primary witnesses called by the State to testify regarding the violations. On June 2, 2005, Officer Cabriales and another officer conducted a standard home visit. Officer Cabriales, who had been assigned S.G.V.'s case on June 1, 2005, introduced himself to S.G.V. and asked S.G.V. the reason he had not been home on two previous curfew checks at the end of May. S.G.V. was not forthcoming with a reason. Officer Cabriales observed that S.G.V. had a cigarette behind his ear which S.G.V. acknowledged was illegal since he was a minor. In response to whether any additional violations would be revealed by a search of his person, S.G.V. stated, "Only what my cousin gave me to hold" and drew his pants tightly around his leg revealing what appeared to be knuckles in his pant's pocket. Although S.G.V. initially turned around to be searched, he subsequently stated that he was not going to allow them to arrest him and ran around the house. When Officer Cabriales approached S.G.V. in the back yard, S.G.V. placed the knuckles on his hand, "drew back and stated, Come on, Come on." When the other officer came around the house from the other side, S.G.V ran from the yard.
Eventually, Officer Ramos joined the other officers in pursuing S.G.V. Officer Ramos approached the area in his car with his emergency lights and siren activated. Officer Ramos was in uniform. S.G.V. crossed the street in front of Officer Ramos's car and continued running. Officer Ramos drove a block over, exited his car, and proceeded on foot in the direction in which S.G.V. would be approaching. Officer Ramos observed S.G.V. running in his direction and ordered him to stop. S.G.V. looked at Officer Ramos and changed his direction of flight. Officer Ramos lost sight of S.G.V. Officer Cabriales had also lost sight of S.G.V. and the other officers but later saw S.G.V. running back toward his house. S.G.V. ran into his house. Officer Ramos and another officer entered the house through an open window and placed S.G.V. in custody. S.G.V. later told Officer Cabriales that he had thrown the knuckles away during the chase. Officer Cabriales stated that the knuckles were a prohibited weapon. Ralph Almaguer, an assistant supervisor for the gang spotlight program with the juvenile probation department, also testified that S.G.V.'s probation conditions prohibited him from being in possession of the knuckles.
S.G.V.'s father testified that on May 28, 2005, he heard a noise outside his house. He walked outside and saw Officer Cabriales standing over his other son and his daughter-in-law on the ground in the rain. S.G.V.'s father had never seen S.G.V. with knuckles. S.G.V.'s sister-in-law stated that she was at the house on June 2, 2005, but she did not see S.G.V. brandish knuckles. S.G.V.'s mother stated that she had never seen S.G.V. with brass knuckles.
S.G.V. testified that he did not see Officer Ramos while he was running through the neighborhood and had never owned a set of brass knuckles or shown a set of knuckles to Officer Cabriales. S.G.V. stated that he ran from Officer Cabriales because Officer Cabriales hit him in the face so he was fleeing because he was concerned for his safety. S.G.V. testified that he was home on May 28th, stating "[t]hat was when — it was raining that day — when they had my cousin and my brother on the floor." S.G.V. testified that he did not see Officer Cabriales on the 28th, he "just saw cops at my house."
On cross-examination, S.G.V. stated the following with regard to his running:
Q. Okay. You stated you ran from your probation officers and you ran from the cops; correct?
A. Yes, ma'am.
Q. And the cops said, Stop. That you didn't know which one it was.
A. Yes, ma'am.
On redirect examination, S.G.V. answered as follows:
Q. Didn't you say when I asked you that you didn't know if it was the person in the uniform or not in the uniform who told you to stop.
A. Yes, sir.
Q. Well, was it the person in the uniform that told you to stop?
A. I didn't see who it was. It was somebody.
The trial court found that S.G.V. violated the conditions of his probation by being in possession of a deadly weapon and by evading detention.
Discussion
In his first issue, S.G.V. challenges the trial court's decision to exclude certain evidence. We review a trial court's ruling admitting or excluding evidence under an abuse of discretion standard. Rachal v. State, 917 S.W.2d 799, 816 (Tex.Crim.App. 1996); In re V.B., No. 04-04-00167-CV, 2005 WL 418710, at *2 (Tex.App.-San Antonio, Feb. 23, 2005, no pet.). If the trial court's decision was within the bounds of reasonable disagreement, we will not disturb its ruling. Rachal, 917 S.W.2d at 816; In re V.B., 2005 WL 418710, at *2.
Rule 401 of the Texas Rules of Evidence defines relevant evidence as "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. To be relevant, evidence must be both probative and material. Rachal, 917 S.W.2d at 816. If proffered evidence is not of consequence to a question at issue, it is immaterial, and thereby irrelevant. Id.
S.G.V. complains of the following ruling by the trial court during the cross-examination of Officer Cabriales:
Q. Okay. And did there come a time when you visited this house when you apprehended [S.G.V.'s] cousin and brother?
MS. BROWN: I would object to this line of questioning, Your Honor. It's not relevant at this point.
MR. DARLING: Your Honor, may I explain?
THE COURT: Yes, you may.
MR. DARLING: The reason it's relevant is because if evidence is introduced that [S.G.V.] had a reasonable fear for his safety, it could justified [sic] the assertion that the evasion, if any, was not lawful because of the probation officer's conduct of earlier was —
THE COURT: The state of mind of the respondent can only be created by the respondent, not by some third party.
MR. DARLING: But it helps demonstrate that his state of mind is fearful of his safety based on some things that have[sic] happened earlier.
THE COURT: That has to be done by the respondent, not by some third party.
MR. DARLING: Okay.
THE COURT: Objection sustained.
S.G.V. argues that the evidence was admissible as facts from which an opinion regarding a mental state may be drawn, citing Fairow v. State, 943 S.W.2d 895, 899 (Tex.Crim.App. 1997). S.G.V. contends that the evidence was relevant as a perception of events that could cause S.G.V. to be fearful for his safety. See id. The State, citing Young v. State, 991 S.W.2d 835, 838-39 (Tex.Crim.App. 1999), responds that the contention that S.G.V. was fearful for his safety would only be relevant if S.G.V. was asserting the defense of necessity, and the defense of necessity would require S.G.V. to admit to the offense and to show that he reasonably believed his conduct was immediately necessary to avoid imminent harm.
S.G.V's defense of necessity would only relate to S.G.V.'s fleeing from Officer Ramos not from Officer Cabriales. S.G.V. did not admit that he fled from Officer Ramos or show how the May 28th event involving Officer Cabriales would make him fearful of his safety in relation to Officer Ramos. See Young, 991 S.W.2d 839. Instead, S.G.V. argued that he did not commit the offense of evading detention because he did not know that Officer Ramos was the officer who told him to stop. Furthermore, even assuming the evidence was erroneously excluded, S.G.V. could not demonstrate harm under either the civil or criminal harm standard. See In re D.I.B., 988 S.W.2d 753, 756 (Tex. 1999) (not deciding which harm standard applies in juvenile cases); Tex.R.App.P. 44.1(a) (civil standard requiring error to probably cause the rendition of an improper judgment); Tex.R.App.P. 44.2(b) (criminal standard requiring error that does not affect a substantial right to be disregarded). Both S.G.V. and his father testified regarding the May 28th event although their versions of the event differed; therefore, evidence of the event was introduced into the record. Moreover, the evidence would only relate, if at all, to the evading detention offense and not to the possession of a deadly weapon offense. The violation of one condition of probation is sufficient to support a trial court's order modifying a juvenile's disposition. See In re J.A.D., 31 S.W.3d 668, 671 (Tex.App.-Waco 2000, no pet.); In re C.O., No. 04-01-00630-CV, 2002 WL 562184, at *2 (Tex.App.-San Antonio Apr. 17, 2002, no pet.). S.G.V.'s first issue is overruled.
In his second issue, S.G.V. contends that the evidence is factually insufficient to support the trial court's finding that he violated the conditions of his probation. We review the trial court's modification of a juvenile disposition for an abuse of discretion. In re H.G., 993 S.W.2d 211, 213 (Tex.App.-San Antonio 1999, no pet.). The trial court may modify its disposition if the court finds by a preponderance of the evidence that the juvenile violated a reasonable and lawful order of the court. Id. When reviewing a factual sufficiency challenge in a juvenile case, we consider the totality of the evidence to determine whether the evidence supporting the finding is so weak or the evidence contrary to the finding is so overwhelming that it is clearly wrong and unjust. Id. The trier of fact is the exclusive judge of the credibility of the witnesses, and, as such, may believe or disbelieve any witness and may resolve any inconsistencies in the testimony of any witness. Id.
The testimony of Officer Cabriales established that S.G.V. was in possession of the knuckles. Although S.G.V. denied possessing the knuckles and his family testified they had never seen him in possession of knuckles, it was in the province of the trial judge to evaluate the credibility of the witnesses. See id. Furthermore, although S.G.V. somewhat inconsistently denied knowing that Officer Ramos was a uniformed officer, Officer Ramos stated that S.G.V. saw him and began fleeing in another direction. This evidence was factually sufficient to support the trial court's finding that S.G.V. knew he was fleeing from a peace officer. S.G.V's second issue is overruled.
Conclusion
The trial court's judgment is affirmed.