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In re K. B.

Court of Appeals of Texas, Third District, Austin

June 14, 2017

In the Matter of K. B.

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. JV 33737, HONORABLE RHONDA HURLEY, JUDGE PRESIDING

          Before Justices Puryear, Pemberton, and Goodwin

          MEMORANDUM OPINION

          David Puryear, Justice.

         Appellant K.B., a minor who was at the time of the order fifteen years old, appeals from the trial court's disposition order imposing a ten-year determinate sentence with a minimum of three years' confinement in a secure correctional facility. K.B. raises two issues on appeal: (1) that the trial court abused its discretion in entering the ten-year sentence, noting that the sentence he received was more severe than the sentences imposed on his co-respondents and arguing that the trial court did not comply with progressive-sanctions guidelines set out in the family code; and (2) that the disposition order did not include a finding that the deadly weapon used or exhibited during the offense was a firearm. We modify the disposition order and, as modified, affirm.

         Factual and Procedural Summary

         K.B. and his two co-respondents, O.P. and Z.P., were charged with two counts of aggravated robbery (paragraphs III and IV) and one count of aggravated assault (paragraph V). K.B. and O.P. pled true to aggravated robbery under paragraph III, Z.P. pled to aggravated robbery under paragraph IV, and the State waived the other counts as to each juvenile. The trial court found true the allegations in the paragraphs each respondent pled to and adjudicated the three juveniles delinquent. For the disposition hearing, the juveniles and the State agreed that the trial court could consider all of the allegations in the State's petition instead of limiting its consideration to the paragraphs to which each boy had pled true. The court then heard testimony related to the juveniles' criminal histories, their family circumstances, their behavior since being detained for the subject offenses, and services provided to the minors following earlier adjudications.

         The witness testimony was that the offenses in question were two robberies and an aggravated assault that occurred within minutes of each other on June 18, 2016. In one robbery, which also included the aggravated assault, one of the victims testified that K.B. and his corespondents pointed a pistol at a husband and wife and stole the husband's wallet; the testimony did not disclose which juvenile held the gun. In the other offense, the victim testified that K.B. approached him in a parking lot, pointed a revolver at him, and demanded his car keys. K.B.'s co-respondents stood nearby and encouraged the victim to listen to K.B. and give him the keys. The victim complied, and the juveniles drove off in the victim's car. The victim testified that he "absolutely" believed K.B. would have killed him if he had not handed over the keys. He also said K.B. is "going to kill somebody. There's no doubt in my mind, and he needs to be locked away."

         Maggie Dworaczyk, a casework manager for the intensive supervision probation unit of the juvenile probation department, testified that she was familiar with K.B.'s file, although she was not his probation officer. Dworaczyk said the department "approved" K.B. for level 5 of the Intermediate Sanctions Center (ISC), which she explained would involve a nine- to twelve-month term. She testified that she thought that a commitment to the Local Commitment Program (LCP) would be for two years.[1] She testified that if K.B. successfully completed an ISC term under a determinate sentence, her department would stay involved with him during probation and that, if he violated any rules of probation, he could be committed to LCP. Dworaczyk believed K.B. would benefit from the ISC because he could work on himself and his behavior, as well as his relationship with his mother, to whom he had been disrespectful, assaultive, and bullying.

         Dworaczyk testified that at the time of the subject offenses, K.B. was on "two different probations." In discussing K.B.'s criminal history, Dworaczyk said that although he was not adjudicated until 2015, K.B. had been involved with the juvenile system since 2013, when he was given therapy, mentoring, and other services. After that successful placement ended, however, "he started having problems again" and was referred to another program for further mentoring and therapy services. He was re-referred to juvenile probation in October 2015, when he was adjudicated for two separate charges of burglary of a habitation. The probation department asked that K.B. be placed outside of his home for those charges, but the trial court ordered that he should be "released home with Day Enrichment, " which consists of a half-day of school and a half-day of drug treatment. K.B. did not do well, and in June 2016, the department asked that K.B. be sent to a residential treatment program. Instead, he was placed a second time on probation at home with Day Enrichment, and two days later, he was arrested on the subject charges. K.B. was also adjudicated for theft in March 2016 and for assault with bodily injury in June 2016, but neither adjudication resulted in a disposition.

         Dworaczyk testified that K.B. was removed from his biological parents as an infant and placed with a foster mother, who eventually adopted him. Dworaczyk said that she would not be surprised to learn that K.B. suffered trauma and had probably been abused before being placed with his adoptive mother. She also testified that K.B.'s mother reported that in the last year, K.B. had started spending time with a man "who has purported to be his father" and who has been a bad influence in K.B.'s life. Dworaczyk testified that K.B. was "fairly unpredictable" and that she believed he was a danger to himself and the community.

         K.B.'s adoptive mother testified that K.B.'s behavior had begun to worsen when he was thirteen years old, shortly after her brother died, and that it worsened further "when his so-called daddy came into his life." She hoped that K.B. would return to school, and she said that if he was imprisoned for ten years, "[t]hat would never happen." She asked that K.B. be placed on probation and "put in a confined facility, " where he could get counseling and other assistance.

         Crystal Pena, a juvenile probation officer for O.P., [2] testified that O.P. was on probation for a "discharge firearm misdemeanor" and was on a waiting list for services when he was arrested for the subject offenses. Pena said O.P. had a supportive and involved family and had recently become a father and "expressed wanting to change for his children." Finally, Pena said that O.P. had been diagnosed with bipolar disorder and prescribed medication to address his "conduct disorder/depression" and his behavior had since changed for the better.

         Ebony Simmons, Z.P.'s probation officer, testified that at the time of the subject offenses, Z.P., like O.P., was on probation for burglary of a habitation but had not yet started his services. A theft-of-property charge from June 2016 was still pending. She said "since January he has seven offenses, so each month he did something. And it escalated into severe and dangerous behavior." Simmons testified that Z.P.'s parents were very cooperative and involved. Since being detained for the subject offenses, Z.P. had been prescribed medications by a psychiatrist, and his behavior, which had been disrespectful and belligerent, had improved. Z.P.'s father testified that Z.P. had not been in trouble with the law until the last year, when he fell in with "negative peer[s], " and that he had hoped Z.P. would be detained after his earlier disposition hearing so that he could be thoroughly evaluated "to try to see what was going on in his head." Z.P.'s father said that Z.P.'s behavior and attitude have greatly improved since he started taking his medications.

         The trial court ordered that O.P. should receive a disposition of eight years, probated for eight years with a minimum stay in ISC of eighteen months, and that Z.P. should receive a disposition of ten years, probated for ten years with a minimum eighteen-month stay in ISC. K.B. was given a ten-year sentence with a minimum of three years' confinement in the LCP ...


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