Kevin Wayne Davy v. State

Kevin Wayne Davy v. State IN THE TENTH COURT OF APPEALS No. 10-00-020-CR KEVIN WAYNE DAVY, Appellant v. THE STATE OF TEXAS, Appellee From the County Criminal Court No. 1 Dallas County, Texas Trial Court # MB98-32671-A CONCURRING OPINION I disagree with the analysis of the first issue. I do not believe that we should review the factual sufficiency of the evidence to support a jury’s implied findings on an article 38.23 instruction. As I read Malik v. State, sufficiency reviews are reserved for elements of the offense. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (“The legality of appellant's detention is not an element of the offense charged but merely relates to the admissibility of evidence.”); see also McGinn v. State, 961 S.W.2d 161, 169 (Tex. Crim. App. 1998) (“We hold that a factual sufficiency review of a jury's determination [at the punishment phase of a capital case] of a probability of future dangerousness is not required by the Texas Constitution.”). Thus, I disagree with the decision in Coleman v. State, 45 S.W.3d 175, 178 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). Shortly after the Clewis decision, in Brumbalow v. State, we recognized that a Clewis-type review of factual sufficiency is limited to the “elements of the offense” and declined to extend it to the factual basis underlying revocation of community supervision. Brumbalow v. State, 933 S.W.2d 298, 299-300 (Tex. App.—Waco 1996, pet. ref’d). The foremost problem with such a review is: What is the remedy if we find the evidence factually insufficient to support the jury’s implied finding on the article 38.23 instruction? The answer is easy if there is no other evidence on which the conviction might be based: reverse for a new trial. If, however, we disregarded the evidence in question on the article 38.23 instruction and found other evidence that is legally and factually sufficient to support the elements of the offense, do we reverse a valid conviction that is fully supported by competent evidence? I think not. I would rather not enter into the quagmire that review of such implied findings poses. Because I otherwise agree with the Chief Justice, I concur in affirming the judgment. BILL VANCE Justice Opinion delivered and filed December 28, 2001 Publish m private placement facilities like Desert Hills and sent back to the court to be placed elsewhere because places like Desert Hills could not handle these types of children. He also testified that another reason why TYC was better than Desert Hills is because TYC had a better battery of tests and better observation before the evaluations are made. Dr. Tan, who treated J.A.S. while he was placed in Austin State Hospital for evaluation, testified that it would not be in J.A.S.'s best interest or society's to place J.A.S. on probation. Because of his continued aggression, the best place for J.A.S. was in TYC so that he would be prevented from hurting his parents and other people. Dr. Tan also testified that he believed that J.A.S. did not require psychiatric hospitalization, although he did admit that TYC has the necessary resources for determining the appropriate treatment for J.A.S. He further stated that J.A.S. exhibited no remorse for his past aggressive behavior and that he was a violent, aggressive person. In fact, J.A.S. told Dr. Tan that he had hurt a teacher at school, his mother, and several students at school and that he was capable of hurting people without remorse. Thus, Dr. Tan concluded that J.A.S. was a "potential murderer" and, in his report, stated that he would not be surprised to see J.A.S. in the criminal justice system. Linda Ricketson, a probation officer for Brazos County Juvenile Services testified that TYC could provide the services that J.A.S. needs and it could supply the same services as Juvenile Services with no cost to the county. David Gordon Munson, an assistant principal at J.A.S.'s school, testified that J.A.S. is an instigator and is confrontational. Munson stated that J.A.S. manipulates the system by having an "outburst" whenever he does not want to do something like take a test. He testified that J.A.S. had told him that it is his "mission" to prove that he is a "menace to society." He also related an incident where he had taken J.A.S. home to his mother and J.A.S. had become very violent. When J.A.S. displayed a knife, Munson was forced to remain with J.A.S.'s mother because he feared for her safety. Munson further observed that J.A.S. never felt remorseful or sorry for his actions and that he only regretted getting caught. After the conclusion of the evidence, the court pronounced its decision stating, "if you don't change your ways, the public is going to be seriously harmed; and that is the reason I'm going to commit you to the Texas Youth Council. We do not have the resources in the county budget to place him at Desert Hills, I don't know that that's the appropriate place for him." It further determined that the schools, juvenile services, and mental health services had done all they could to help J.A.S. Thus, she concluded that he should be committed to TYC. Having reviewed the evidence, we find that some evidence supports the court's 54.04 determinations as stated in its disposition order. As to whether it was in J.A.S.'s best interest to be placed outside his home, both his probation officer, McDaniel, and Dr. Tan testified that it was in the best interest of J.A.S. to be placed in TYC because he was very violent and needed to learn the consequences of his actions. Reasonable efforts had been made to avoid removal from the home. McDaniel testified that Juvenile Services had tried other alternatives like electronic monitoring and informal probation, but because J.A.S. could not follow rules, Juvenile Services had "exhausted" its resources. Dr. Tan also testified that probation was not appropriate for J.A.S. Additionally, the evidence demonstrated that J.A.S. would not receive the necessary level of care and supervision to fulfil the conditions of probation. Here, the evidence clearly shows that J.A.S.'s parents were unable to maintain discipline, and several witnesses testified that the parents could not provide the necessary supervision. In fact, J.A.S.'s own doctor testified that he had serious questions about the parents' ability to adequately supervise J.A.S. Finally, J.A.S. argues in his brief that he should be placed in Desert Hills because it would meet his mental health needs. We disagree. There is some evidence to support the court's determination that TYC was better than Desert Hills. Not only did McDaniel testify that TYC has the power to place J.A.S. in other mental health facilities, including Desert Hills, but he also testified that TYC has a better battery of tests that would be able to diagnose J.A.S.'s mental problems. Furthermore, the statute requires only that the court determine whether the child should be placed outside the home, not whether TYC or some other facility is more appropriate. Thus, we hold that the court did not abuse its discretion when it committed J.A.S. to TYC. Point two is overruled. J.A.S.'s point three contends that the court abused its discretion in committing him to TYC without attempting to use other forms of rehabilitation and trying to keep J.A.S. at home. The record demonstrates that informal probation and electronic monitoring had been attempted, but they failed. McDaniel testified that Juvenile Services had "exhausted" its resources; thus, J.A.S. should be sent to TYC. Additionally, Dr. Tan, McDaniel, and Dr. Newsom testified that J.A.S. should not be kept at home because he did not have adequate supervision. Thus, we find that the court did not abuse its discretion in committing J.A.S. to TYC because the evidence supports the determination that TYC was the best place for J.A.S. We overrule point three. In point four, J.A.S. alleges that the court erred in committing him to TYC because the evidence shows that he is mentally ill and needs special treatment. Again, we disagree. Dr. Tan testified that J.A.S. did not need psychiatric treatment. Even Dr. Newsom was not willing to give a definite diagnosis of J.A.S.'s condition, because as an adolescent, J.A.S.'s personality was still developing. Thus, the evidence does not clearly demonstrate that J.A.S. was mentally ill. Assuming J.A.S. has a mental disorder, the record shows that TYC has the resources necessary to treat him. In fact, TYC could send J.A.S. to other facilities if a mental illness were found. The record shows that Desert Hills may not be the appropriate place for an assaultive child like J.A.S. Consequently, the court did not abuse its discretion in committing J.A.S. to TYC. Point four is overruled. Point six asserts that the court abused its discretion when it ignored its prior decision finding J.A.S. mentally ill. The record shows that J.A.S. was only committed to Austin State Hospital for 90 days so that he could be evaluated and diagnosed. Dr. Tan, the treating psychiatrist at Austin State Hospital, found that J.A.S. did not need psychiatric treatment. J.A.S. argues that Dr. Newsom found him mentally ill, but the record shows that Dr. Newsom was unwilling to give a definite diagnosis because J.A.S. was an adolescent whose personality was still forming. He even said that Dr. Tan's diagnosis should be given credit because Dr. Tan had spent more time with J.A.S. than he had. Additionally, the testimony showed that TYC has the capability to deal with J.A.S.'s mental disorder if one were found. We find that the court did not abuse its discretion committing J.A.S. to TYC. Point six is overruled. Point five contends that the trial court abused its discretion in denying J.A.S.'s motion for new trial. J.A.S. asserts that because the court knew that he was not receiving the medication prescribed for his bipolar disorder while he was in TYC's custody, it abused its discretion in not granting a new trial. J.A.S.'s motion for new trial asserts only that J.A.S. should not have been committed to TYC because the evidence at trial showed that he was mentally ill and needed specialized treatment. The motion does not allege that TYC was not administering J.A.S.'s medication, and the motion does not contain any affidavits asserting that TYC was not providing adequate care. The court was informed of these allegations only through a letter sent by J.A.S.'s attorney. J.A.S., as the movant, had the burden of presenting a motion for new trial to the court, "obtaining a hearing, and presenting evidence to substantiate any factual matters necessary to show he is entitled to the requested relief." Cocke v. Saks, 776 S.W.2d 788, 790 (Tex. App.—Corpus Christi 1989, writ denied); see also Fulton v. Duhaime, 525 S.W.2d 62, 64 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref'd n.r.e.). When a movant requests a new trial based on facts outside the knowledge of the court, the factual allegations should be supported by affidavits or other competent evidence. Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 672 (Tex. App.—Fort Worth 1996, no writ); see also Welborn-Hosler v. Hosler, 870 S.W.2d 323, 328 (Tex. App.—Houston [14 Dist.] 1994, no writ) (holding that the movant's burden is not met if the motion for new trial is not supported by affidavits or competent evidence). A trial court's denial of a motion for new trial will not be disturbed absent an abuse of discretion. Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994); Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987). The evidence adduced at trial does not clearly show that J.A.S. was mentally ill. Dr. Tan testified that J.A.S. did not need psychiatric treatment. Further, the record does not support J.A.S.'s allegations concerning his medication. J.A.S. did not assert in his motion that TYC was not giving him the medicine for bipolar disorder, and he did not present any competent evidence or affidavits supporting this allegation. Thus, the court did not abuse its discretion when it denied J.A.S.'s motion for new trial. We overrule point five. In point seven, J.A.S. argues that the trial court improperly considered an unadjudicated offense in committing him to TYC. He argues that when the trial judge said "[J.A.S.], of course, the allegations against you in the [C.O. case] . . . are very serious allegations, but they have not been proven to be true," it was basing its decision on an unadjudicated offense. This was demonstrated when the court further said, "I don't know what is happening with you and I don't know why you seem to be spiralling, but it's looking to me like it's a spiral and we've got to do something to stop it before it just gets deeper and worse." The evidence adduced at the disposition phase shows that J.A.S. had nine major "incidents" while on informal adjustment. He violated his conditional release while waiting for trial in this case. Both Dr. Tan and McDaniel testified that J.A.S. should be sent to TYC. The court's statement does not clearly indicate that it based its decision to send J.A.S. to TYC only on an adjudicated offense. Furthermore, the evidence otherwise supports the decision. Consequently, the court did not err in committing J.A.S. to TYC. We overrule point seven. CONCLUSION Having overruled J.A.S.'s points, we affirm the judgment. BILL VANCE Justice Before Chief Justice Davis, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed January 29, 1997 Do not publish