Opinion
Nos. 04-04-00305-CV, 04-04-00306-CV
Delivered and Filed: April 13, 2005.
Appeal from the 289th Judicial District Court, Bexar County, Texas, Trial Court Nos. 2003-Juv-00933 2002-Juv-00870, Honorable Carmen Kelsey, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
M.W.R. appeals the trial court's orders modifying a prior disposition and committing him to the Texas Youth Commission ("TYC"). M.W.R. raises two issues on appeal: 1) whether the trial court's admission of hearsay testimony at the disposition hearing deprived M.W.R. of his constitutional right of confrontation; and 2) whether the evidence is sufficient to establish M.W.R. violated a condition of his probation, i.e., curfew, on three occasions. We affirm the trial court's judgments.
Background
On May 31, 2002, M.W.R. was adjudicated as a child who engaged in delinquent conduct for committing the felony offense of possession of a controlled substance. Tex. Health Safety Code Ann. § 481.115(c) (Vernon 2003). M.W.R. was placed on probation for twelve months in the custody of his mother and ordered to perform fifty hours community service, submit to drug testing, abide by a 9:00 p.m. curfew, attend school, attend the ROPES Challenge Program, and refrain from associating with known gang members. On April 28, 2003, M.W.R. received a second adjudication for the misdemeanor offenses of possession of marijuana and evading arrest. Id. § 481.121(b)(1); Tex. Pen. Code Ann. § 38.04 (Vernon 2003). M.W.R. was placed on zero tolerance probation for sixteen months in the custody of his mother and ordered to abide by an 8:00 p.m. curfew.
The State filed two identical motions to modify disposition in each case, alleging M.W.R. violated his probation by failing to be at his place of residence after his court-ordered curfew. At the modification hearing, M.W.R.'s probation officer, Tracy Munoz, testified that she visited M.W.R.'s residence on three occasions: July 19, 2003, at 11:50 p.m.; July 23, 2003, at 9:20 p.m.; and July 30, 2003 at 12:58 a.m. On each occasion, Munoz knocked on the door of M.W.R.'s residence and was informed M.W.R. was not at home. Munoz did not see M.W.R. on the premises, and he did not come to the door. M.W.R.'s objection to Munoz's testimony on hearsay and confrontation grounds was overruled. At the conclusion of the hearing, the court concluded M.W.R. violated a reasonable and lawful court order, revoked his probation, and committed him to TYC for an indeterminate time. Confrontation
The Sixth Amendment's Confrontation Clause provides: "In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him. . . ." U.S. Const. amend. VI. (Emphasis added). The Fourteenth Amendment of the Constitution makes the Confrontation Clause applicable to the states. Pointer v. Texas, 380 U.S. 400, 401 (1965). Article I, Section 10 of the Texas Constitution and Article 1.05 of the Texas Code of Criminal Procedure also guarantee the accused the right to confront witnesses in all criminal prosecutions. Tex. Const. art. I, § 10; Tex. Code. Crim. Proc. Ann. art. 1.05.
M.W.R. contends his confrontation rights were violated when the trial judge permitted his probation officer to testify that M.W.R's mother informed her M.W.R. was not at home during his curfew hours. However, M.W.R. had already been adjudicated of the underlying offenses. The purpose of the motion to modify disposition was not to determine whether M.W.R. violated any laws of the United States or Texas, but rather to determine whether M.W.R. violated the curfew conditions of his probation. Modification of a juvenile probation, like revocation of criminal community supervision, is not a "criminal prosecution" within the meaning of the Sixth Amendment constitutional guarantee. Compare Tex. Fam. Code Ann. § 54.03(b), (e) (Vernon 2002) (explaining that at an adjudication hearing in which the juvenile court's purpose is to decide whether the juvenile is delinquent of a felony or misdemeanor, the juvenile is entitled to a jury trial, counsel, confrontation of witnesses and the right against self-incrimination) with id. § 54.05(c) (specifically denying the juvenile the right to a jury in a modification hearing); see also In re A.M.B., 676 S.W.2d 448, 450-51 (Tex.App.-Houston [1st Dist.] 1984, no pet.) (citing Hood v. State, 458 S.W.2d 662, 663 (Tex.Crim.App. 1970)) (modification of juvenile probation is not a "trial" for purposes of the Sixth Amendment). M.W.R.'s first issue is overruled.
Sufficiency of the Evidence
In his second issue, M.W.R. contends the trial court erred in revoking his probation because the evidence was insufficient to find he violated a reasonable and lawful court order.
We review a court's decision to modify a juvenile disposition under an abuse of discretion standard. In re M.A.L., 995 S.W.2d 322, 324 (Tex.App.-Waco 1999, no pet.). Because this appeal arises from a proceeding to modify a disposition based on an adjudication of delinquent conduct, we must determine "whether the record shows that the court abused its discretion in finding, by a preponderance of the evidence, a violation of a condition of probation." Id. When a juvenile challenges the legal sufficiency of the evidence, we consider only the evidence and inferences tending to support the judgment. In re S.A.M., 933 S.W.2d 744, 745 (Tex.App.-San Antonio 1996, no writ). In reviewing a factual sufficiency claim, we consider and weigh all the evidence in the case and set aside the judgment only if the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re J.J., 916 S.W.2d 532, 535-36 (Tex.App.-Dallas 1995, no writ). The trial court is the sole trier of facts and judge of the credibility of the witnesses and the weight to be given their testimony. See Grant v. State, 566 S.W.2d 954, 956 (Tex.Crim.App. 1978).
The evidence adduced at the hearing established M.W.R. was not present at his place of residence during his curfew hours. Munoz testified she did not encounter M.W.R. at his residence, and he did not come to the door. Munoz was informed by M.W.R.'s family members that he was not at home. We disagree with M.W.R. that the trial court erred in finding, by a preponderance of the evidence, that he violated a reasonable and lawful order of the court. M.W.R.'s second issue is overruled. The judgments of the trial court are affirmed.