CASE NO CV IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS IN THE MATTER OF D. H.

STATEMENT OF ALL PARTIES TO TRIAL COURT=S JUDGMENT The following is a complete list of all parties to the Trial Court=s Judgment and their counsel in the Trial Court: The State of Texas/Appellee - Mr. Joseph Brown, District Attorney Grayson County Justice Center 200 South Crockett Street Sherman, Texas 75090 Mr. Brett Smith, Assistant District Attorney Grayson County Justice Center 200 South Crockett Street Sherman, Texas 75090 D.H., a Juvenile/Appellant - Mr. Elijah Brown, Trial Counsel Attorney at Law 112 N. Travis Street, Ste. 100 Sherman, Texas 75090 Mr. Garland D. Cardwell, Appellate Counsel Munson, Munson, Cardwell & Tillett, P.C. 123 S. Crockett Street Sherman, Texas 75090 i

TABLE OF CONTENTS Page STATEMENT OF ALL PARTIES TO TRIAL COURT=S JUDGMENT... i TABLE OF CONTENTS... ii-iii TABLE OF AUTHORITIES... iv-v STATEMENT OF THE CASE...2 STATEMENT OF JURISDICTION...3 STATEMENT OF FACTS...3 APPELLANT=S POINTS OF ERROR...4 STATEMENT OF FACTS, ARGUMENT AND AUTHORITIES...4 POINT OF ERROR ONE. APPELLANT DID NOT RECEIVE REASONABLE NOTICE OF THE HEARING TO MODIFY DISPOSITION AND ADEQUATE OPPORTUNITY TO PREPARE AS REQUIRED BY LAW. (C.R., P. 2, 54-57, 61-66, 69-72, 147-157; R.R., VOL. 1)...4 Statement of Facts...4 Argument and Authorities...5 POINT OF ERROR TWO. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE JUVENILE COURT=S FINDINGS IN THE ORDER MODIFYING DISPOSITION TO THE TEXAS YOUTH COMMISSION AND THE ORDER ON SEX OFFENDER REGISTRATION. (C.R., P. 61-62, 80-92, 147-160; R.R., VOL. 1, P. 15-35, 39-43, 45-61, 70-77, 81-110)....4, 7 Statement of Pertinent Facts...7 Arguments and Authorities...9 ii

CONCLUSION AND PRAYER...10 CERTIFICATE OF SERVICE...11 iii

TABLE OF AUTHORITIES Page STATUTES AND RULES TEX. FAM. CODE ANN. ' 51.10(h) (Vernon 2003)...6 TEX. FAM. CODE ANN. ' 54.05(a) (Vernon 2007)...5 TEX. FAM. CODE ANN. ' 54.05(a)(1) (Vernon 2007)...6 TEX. FAM. CODE ANN. ' 54.05(b) (Vernon 2007)...5 TEX. FAM. CODE ANN. ' 54.05(c) (Vernon 2007)...5 TEX. FAM. CODE ANN. ' 54.05(d) (Vernon 2007)...5 TEX. FAM. CODE ANN. ' 54.05(f) (Vernon 2007)...9 TEX. FAM. CODE ANN. ' 56.01(a) (Vernon 1999)...3 TEX. FAM. CODE ANN. ' 56.01(c)(1)(C) (Vernon 1999)...3 TEX. R. APP. P. 38...1 TEX. R. APP. P. 38.1(g)...3 CASES Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)...9 v

Franks v. State, 498 S.W. 2d 516, 518 (Tex. Civ. App. - Texarkana 1973, no writ)...6 In re B.J., 100 S.W.3d 448 (Tex.Civ.App. - Texarkana, 2003)...10 In the Matter of J.R.C., 236 S.W.3d 870 (Tex.Civ.App. - Texarkana, 2007)...10 In the Matter of M.L.S., 590 S.W. 2d 626, 627 (Tex. Civ. App. - San Antonio 1979, no writ)...6 In the Matter of M.R., 846 S.W.2d 97 (Tex.App. - Fort Worth, 1992)...9 In the Matter of R.J.W., 770 S.W.2d 103, 105 (Tex.App. - Houston [1 st Dist.] 1989)...9 In the Matter of S.H., 846 S.W. 2d 103, 106 (Tex. App. - Corpus Christi 1992, no writ)...9 vi

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CASE NO. 05-09-00657-CV IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS IN THE MATTER OF D.H., A JUVENILE APPEAL IN CAUSE NO. 07-03-8148-J IN THE 397TH JUDICIAL DISTRICT COURT OF GRAYSON COUNTY, TEXAS SITTING AS A JUVENILE COURT AMENDED APPELLANT=S BRIEF TO THE HONORABLE JUDGES OF THE COURT OF APPEALS: COMES NOW, D.H., hereinafter referred to as Appellant, and submits this Amended Brief pursuant to the provisions of Rule 38 of the Texas Rules of Appellate Procedure, respectfully requesting that this Honorable Court reverse the Trial Court=s Order Modifying Disposition to the Texas Youth Commission in this cause, and remanding same to the Trial Court 1

for a new hearing on the Petition to Modify Disposition in accordance with instructions from this Court. In support thereof, Appellant would respectfully show the Court as follows: STATEMENT OF THE CASE Appellant, D. H., a juvenile, was originally charged with alleged delinquent conduct by a three-count Petition Alleging Delinquent Conduct filed with the Juvenile Court on February 3, 2005. The Petition charged Appellant with Aggravated Sexual Assault of a Child in Counts I and II, and Indecency with a Child in Count III, all allegedly occurring on January 4, 2005. (C.R., P. 166-168). Any reference in this Brief to the Clerk=s Record hereinafter shall be cited AC.R., P. @, and the Court Reporter=s Record hereinafter shall be cited AR.R. Vol., P. @. On June 8, 2005, the Juvenile Court adjudged that Appellant had engaged in the delinquent conduct of Indecency with a Child alleged in Count III of the Petition only, and placed Appellant on probation for twenty four (24) months with (180) good days in the Cooke, Fannin and Grayson County Juvenile Boot Camp. (C.R., P. 147-159). Appellant completed the Boot Camp Program, and began outpatient sex offender treatment along with the other conditions of his probation. Thereafter, on April 7, 2008, (almost three (3) years after the original adjudication) a Petition to Modify Disposition was filed against Appellant alleging, among other things, that he did not complete, and was terminated from, outpatient sex offender treatment on April 4, 2007. (C.R., P. 103-105). On April 28, 2008, Appellant pled true to the allegations in said Petition, and the Court entered an Order Modifying Disposition and placing Appellant on probation for another period of twelve (12) months, with another 180 good days in juvenile boot camp as a 2

condition of the probation. (C.R., P. 80-81, 84-92). Thereafter, on or about April 14, 2009, Appellee filed another Petition to Modify Disposition alleging that Appellant failed to successfully complete the inpatient boot camp sex offender treatment program, and was unsuccessfully discharged from the program on April 13, 2009. (C.R., P. 61-62). Appellee also filed a Motion for Hearing to Determine Sex Offender Registration in connection with the Petition to Modify Disposition. (C.R., P. 67-68). On April 22, 2009, only eight (8) days after the Petition to Modify Disposition was filed, the Juvenile Court proceeded to hold a hearing on the Petition and the Motion to Determine Sex Offender Registration. (R.R., Vol. 1). At the conclusion of the hearing, the Court found beyond a reasonable doubt that the allegations in the Petition were true, and entered an Order Modifying Disposition to the Texas Youth Commission and an Order on Sex Offender Registration on April 22, 2009. (C.R., P. 54-60). On April 24, 2009, counsel for Appellant filed a timely Motion for New Trial, which Motion was denied by operation of law without a hearing. (C.R., P. 11-15). Counsel for Appellant also filed a timely Notice of Appeal to this Court on April 24, 2009. (C.R., P. 9-10). On May 5, 2009, trial counsel for Appellant filed his Motion to Withdraw as Counsel, such Motion was granted by the Court on May 18, 2009, and thereafter the undersigned was appointed to represent Appellant on this appeal. (C.R., P. 6-8). STATEMENT OF JURISDICTION This Honorable Court has jurisdiction to hear this appeal pursuant to V.T.A.S. Family Code ' 56.01(a) and (c)(1)(c) (Vernon 1999). STATEMENT OF FACTS 3

A separate statement of pertinent facts will be set forth with each point of error along with appropriate argument and authorities to support each point of error as contemplated by Rule 38.1(g) of the Texas Rules of Appellate Procedure. APPELLANT=S POINTS OF ERROR POINT OF ERROR ONE. APPELLANT DID NOT RECEIVE REASONABLE NOTICE OF THE HEARING TO MODIFY DISPOSITION AND ADEQUATE OPPORTUNITY TO PREPARE AS REQUIRED BY LAW. (C.R., P. 2, 54-57, 61-66, 69-72, 147-157; R.R., VOL. 1). POINT OF ERROR TWO. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE JUVENILE COURT=S FINDINGS IN THE ORDER MODIFYING DISPOSITION TO THE TEXAS YOUTH COMMISSION AND THE ORDER ON SEX OFFENDER REGISTRATION. (C.R., P. 61-62, 80-92, 147-160; R.R., VOL. 1, P. 15-35, 39-43, 45-61, 70-77, 81-110). STATEMENT OF FACTS, ARGUMENT AND AUTHORITIES POINT OF ERROR ONE. APPELLANT DID NOT RECEIVE REASONABLE NOTICE OF THE HEARING TO MODIFY DISPOSITION AND ADEQUATE OPPORTUNITY TO PREPARE AS REQUIRED BY LAW. (C.R., P. 2, 54-57, 61-66, 69-72, 147-157; R.R., VOL. 1). Statement of Facts: The Petition to Modify Disposition herein was filed by Appellee on April 14, 2009, alleging that Appellant violated condition numbers 17 and 29 of his probation by failing to successfully complete the Boot Camp=s juvenile sex offender treatment program, resulting in Appellant being unsuccessfully discharged from Boot Camp on April 13, 2009. (C.R., P. 61-62). (Emphasis Added). Since Appellant was already in the custody of the Boot Camp Program, a Directive to Apprehend was issued on the Petition and Appellant was immediately 4

detained on an Order of Detention. (C.R., P. 63-66). At the time the Petition was filed, it is undisputed that Appellant was born on May 1, 1991, and thus he was about to turn eighteen (18) on May 1, 2009. (C.R., P. 61-62). (Emphasis Added). It further appears from the record herein that Appellant had been continuously on juvenile probation in this case since June 8, 2005, had initially completed Boot Camp and the sex offender treatment program, and was currently involved in the Boot Camp Program when the Petition to Modify was filed. (C.R., P. 147-157; R.R., Vol. 1, P. 15-35). (Emphasis Added). Although it appears that counsel was appointed for Appellant on April 2, 2009, such counsel could not have been provided with a copy of the Petition to Modify until after it was filed on April 14, 2009. (C.R., P. 61-62, 69-72). (Emphasis Added). On April 22, 2009, only eight (8) days after the Petition to Modify was filed, the Juvenile Court proceeded to hold a hearing on the Petition and ordered Appellant committed to the Texas Youth Commission. (C.R., P. 2, 54-57; R.R., Vol. 1). Argument and Authorities: Pertinent provisions of the Juvenile Justice Code, contained in Title 3 of the Texas Family Code, concerning hearings to modify disposition in juvenile cases provide as follows: ' 54.05. Hearing to Modify Disposition (a) A Any disposition, except a commitment to the Texas Youth Commission, may be modified by the juvenile court as provided in this section until: (1) the child reaches his 18 th birthday; or (2) the child is earlier discharged by the court or operation of law. (b) Except for a commitment to the Texas Youth Commission, all dispositions automatically terminate when the child reaches his 18 th birthday. 5

(c) There is no right to a jury at a hearing to modify disposition.. (d) A hearing to modify disposition shall be held on the petition of the child and his parent, guardian, guardian ad litem, or attorney, or on the petition of the state, a probation officer, or the court itself. Reasonable notice of a hearing to modify disposition shall be given to all parties.....@ (Emphasis Added). TEX. FAM. CODE ANN. ' 54.05(a) - (d) (Vernon 2007). This statute requires that Areasonable notice@ of any hearing to modify disposition shall be given to all parties. (Emphasis Added). Courts have held that the rule entitling a juvenile=s counsel 10-days notice of an adjudication or transfer hearing applies to modification hearings as well. In the Matter of M.L.S., 590 S.W. 2d 626, 627 (Tex. Civ. App. - San Antonio 1979, no writ); Franks v. State, 498 S.W. 2d 516, 518 (Tex. Civ. App. - Texarkana 1973, no writ); TEX. FAM. CODE ANN. ' 51.10(h) (Vernon 2003). Appellant=s counsel herein could not begin to prepare a defense for Appellant until the Motion to Modify Disposition was filed on April 14, 2009. There is no evidence in the record showing when Appellant=s counsel actually received or was served with a copy of the Motion to Modify. At best, Appellant=s counsel only received eight (8) days notice of the modification hearing held herein on April 22, 2009, assuming he actually received a copy of the Petition on April 14, 2009, the date it was filed. It appears clear that Appellee was trying to rush the modification hearing since Appellant=s probation disposition had to be heard and modified before Appellant turned eighteen (18) on May 1, 2009. On May 1, 2009, Appellant=s probation would have expired, and no further modification could have been made as provided by ' 54.05(a)(1) of the Texas Family Code set forth above. Since Appellee was seeking to modify Appellant=s disposition to a commitment to the Texas Youth Commission, Appellant and his counsel should have been given at least ten (10) 6

days Areasonable notice@ of the modification hearing. Therefore, Appellant would submit that his modification herein should be reversed, and that he be ordered discharged and released from any further disposition herein since he has now reached his 18 th birthday. POINT OF ERROR TWO. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE JUVENILE COURT=S FINDINGS IN THE ORDER MODIFYING DISPOSITION TO THE TEXAS YOUTH COMMISSION AND THE ORDER ON SEX OFFENDER REGISTRATION. (C.R., P. 61-62, 80-92, 147-160; R.R., VOL. 1, P. 15-35, 39-43, 45-61, 70-77, 81-110). Statement of Pertinent Facts: The Petition for Hearing to Modify Disposition filed against Appellant on April 14, 2009, alleged that Appellant had violated the reasonable and lawful conditions of his probation as follows: AYour Petitioner would show the Court that he has good reason to believe and does believe and charges that the said Probationer herein has violated the reasonable and lawful conditions of his probation at a time when said probation was in full force and effect, in this, to-wit: COUNT I Respondent violated condition number 17 of his probation in that Respondent failed to successfully complete the Juvenile Sexual Offender Treatment Program, COUNT II Respondent violated condition number 29 of his probation in that Respondent will be unsuccessfully discharged on April 13, 2009, for failing to follow the program rules and failing to successfully complete the inpatient sex offender treatment portion of the boot camp, against the peace and dignity of the State.@ (C.R., P. 61-62). The Record herein shows that Appellant had been on juvenile probation for almost four (4) years 7

since he was originally adjudicated on June 8, 2005. (C.R., P. 147-160). It appears undisputed from the testimony and evidence at the Modification Hearing that Appellant did successfully complete the Boot Camp and inpatient portion of the Sex Offender Treatment Program initially, and was released on probation with outpatient sex offender treatment. (C.R.R., Vol. 1, P. 15-35). 8

On April 28, 2008, Appellant=s probation disposition was modified to require an additional twelve (12) months of probation, again requiring Appellant to complete another 180 good days in Boot Camp along with successful completion of the Juvenile Sex Offender Treatment Program again. (C.R., P. 80-92). During the modification hearing on April 22, 2009, Appellant=s juvenile probation officer testified that he had graduated high school while in the Boot Camp Program, had completed a Job Book, completed all substance abuse classes, completed anger management classes, and had been truthful on all of his polygraph tests. (R.R., Vol. 1, P. 25-35). Both witnesses who testified on behalf of the Book Camp Program, David Gray and Marketa Johnson, stated under oath that Appellant was always respectful to staff, did what he was asked to do, led others by example, was not a threat to anyone, and had amassed 3,941 points in the Boot Camp Program when he only needed 3,600 points to graduate from the Program. (R.R., Vol. 1, P. 39-43, 45-61). Bill Mory, the therapist/registered sex offender treatment provider, who was working with Appellant in Boot Camp testified that he believed Appellant could continue to get the ongoing treatment he needed outside of a commitment to the Texas Youth Commission. (R.R., Vol. 1, P. 70-77). In that regard, Appellant=s aunt, Jackie Hume, testified that she was willing to have Appellant live with her in Plano, Texas, and bring him to Sherman, Texas, for continued sex offender counseling and treatment with Patty Andrews, LPC/RSOTP. (R.R., Vol. 1, P. 99-110). This continued treatment would also be performed in conjunction with Dr. James Harrison, Ph.D., who had performed a psychological evaluation of Appellant concerning his intellectual ability to comprehend and complete a sex offender treatment program. (R.R., Vol. 9

1, P. 81-99). Arguments and Authorities: The law establishing the burden of proof in juvenile modification proceedings alleging the violation of a lawful court order provides as follows: ' 54.05. Hearing to Modify Disposition (f) Except as provided by Subsection (j), a disposition based on a finding that the child engaged in delinquent conduct that violates a penal law of this state or the United States of the grade of felony may be modified so as to commit the child to the Texas Youth Commission if the court after a hearing to modify disposition finds by a preponderance of the evidence that the child violated a reasonable and lawful order of the court. TEX. FAM. CODE ANN. ' 54.05(f) (Vernon 2007). When reviewing the factual sufficiency of the evidence, the totality of evidence is considered to determine whether the evidence supporting the finding is so weak, or the evidence against the finding is so overwhelming, that the finding is clearly wrong and unjust. In the Matter of S.H., 846 S.W. 2d 103, 106 (Tex. App. - Corpus Christi 1992, no writ); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Juvenile proceedings are governed, as far as practicable, by the rules of civil procedure and are civil in nature. However, protections and due process requirements in juvenile matters are similar to those in adult criminal prosecutions. The strict standards applied in criminal law are also applicable to protect the juvenile in quasi-criminal proceedings such as this. In the Matter of M.R., 846 S.W.2d 97 (Tex.App. - Fort Worth, 1992); In the Matter of R.J.W., 770 S.W.2d 103, 105 (Tex.App. - Houston [1 st Dist.] 1989). Appellant admits that in reviewing the sufficiency of the evidence, the evidence is viewed in the light most favorable to the Trial Court=s decision. Additionally, such decision modifying 10

a juvenile=s probation rests within the sound discretion of the trial court, and will only be reversed on a finding of abuse of discretion. In the Matter of J.R.C., 236 S.W.3d 870 (Tex.Civ.App. - Texarkana, 2007); In re B.J., 100 S.W.3d 448 (Tex.Civ.App. - Texarkana, 2003). However, Appellant would submit that a close review of the record on appeal shows that there was clearly insufficient evidence to support the Trial Court=s finding that Appellant had violated his probation as alleged to warrant committing Appellant to the care and custody of the Texas Youth Commission. CONCLUSION AND PRAYER Based upon the above, Appellant would assert that the ends of justice warrant a reversal of Appellant=s modification of probation to a commitment to the Texas Youth Commission, and that he be ordered discharged from further commitment since he has now reached his 18 th birthday. WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court reverse the modified disposition of the Trial Court below, and order Appellant released from further commitment and probation herein. Respectfully submitted, TILLETT MUNSON, MUNSON, CARDWELL & Post Office Box 1949 123 South Travis Street Sherman, Texas 75091-1949 Telephone: (903) 893-8161 Facsimile: (903) 893-1345 By: 11

12 Garland D. Cardwell State Bar Number 03790600

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Appellant=s Amended Brief has been sent via hand delivery to the Grayson County District Attorney=s Office, Grayson County Justice Center, 200 S. Crockett Street, Sherman, Texas 75090, on the day of December, 2009. Garland D. Cardwell 13