Opinion issued October = 4,=20 2007
E.B.R.=20
appeals the juvenile court's We =
affirm.
On July 14, 2006, =
the=20
juvenile court adjudged E.B.R. to have engaged in delinquent =
conduct by=20
possessing a weapon on the premises of a school. On=20
September 1, 2006, the State filed a petition to modify E.B.R.'s=20
disposition. In the petition, the State sought to revoke E.B.R.'s=20
probation and requested that E.B.R. be committed to the TYC. In =
support of=20
its request, the State alleged 20 violations of the conditions of =
E.B.R.'s=20
probation. Specifically, the State alleged 20 separate instances =
of=20
E.B.R.'s failure to comply with the rules of either the JJAEP or =
the=20
residential center. At the=20
modification hearing, Belinda Gaines, principal of the JJAEP, =
testified=20
for the State. Gaines testified that she met with E.B.R. three to =
five=20
times in response to staff reports that E.B.R. had violated JJAEP =
rules.=20
In conjunction with Gaines's testimony, eight disciplinary forms =
were=20
admitted into evidence detailing E.B.R.'s rule-violative behavior =
at the=20
JJAEP and at the residential center. When the first three of these =
forms=20
were offered into evidence, the defense objected on hearsay =
grounds. The=20
juvenile court sustained the objection for the first two forms, =
which had=20
been authored by JJAEP staff other than Gaines, but overruled the =
hearsay=20
objection regarding a disciplinary form authored by Gaines ("the =
Gaines=20
disciplinary form"). Ultimately, in addition to the the Gaines=20
disciplinary form, seven other disciplinary forms were admitted as =
JJAEP=20
business records through Gaines. When=20
correcting [E.B.R.] and another student he proceeded to tell me =
that the=20
reason he is in trouble is because I always come in and scream at =
him like=20
another teacher. He is rude and disrespectful. To my knowledge =
[E.B.R.]=20
has been escorted from the class on 2 previous incidents today. He =
is=20
chronically refusing to do what is asked without compliance. I had =
previously tried to assist him with math and he refused to comply. =
In addition=20
to the written explanation, Gaines also checked the following =
infractions=20
on the form: "Insubordination/Disrespect towards staff or peers" =
and=20
"Talking without permission." At the modification hearing, Gaines=20
testified that E.B.R.'s conduct toward her, as described in the=20
At the=20
conclusion of the hearing, the juvenile court verbally identified =
seven=20
violations of E.B.R.'s probation conditions. Specifically, the =
juvenile=20
court found that E.B.R. had, in seven separate instances, violated =
either=20
the JJAEP's rules or the residential center's rules. The=20
juvenile court signed an order modifying E.B.R.'s disposition. The =
court=20
revoked E.B.R.'s probation and committed him to the TYC until his=20
twenty-first birthday. In the modification order, the juvenile =
court=20
identified the following five probation violations: (1) On=20
August 23, 2006, [E.B.R.] failed to comply with the rules of the =
Juvenile=20
Justice Alternative Education Program by insubordination, =
disrespect=20
towards staff or peers and talking without =
permission. (2) On=20
August 23, 2006, [E.B.R.] failed to comply with the rules of the =
Juvenile=20
Justice Alternative Education Program by insubordination, =
disrespect=20
towards staff or peers and gang activity. (3) On=20
August 11, 2006, [E.B.R.] failed to comply with the rules of the =
Juvenile=20
Justice Residential Center by carving letters into the plaster on =
the=20
wall. (4) On=20
August 23, 2006, [E.B.R.] failed to comply with the rules of the =
Juvenile=20
Justice Residential Center Raising=20
three points of error, E.B.R. challenges the modification=20
order.
In his=20
second point of error, E.B.R. contends that he was denied =
effective=20
assistance of counsel at the modification hearing because his =
counsel did=20
not object on Confrontation Clause grounds to the admission of a =
number of=20
the disciplinary forms. See U.S. Const. amend. VI. =
A.=20
Legal Principles Governing To prove=20
ineffective assistance of counsel, appellant must show (1) that =
counsel's=20
performance fell below an objective standard of reasonableness and =
(2)=20
that the deficient performance prejudiced the appellant. =
Strickland v.=20
Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, =
2068=20
(1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. =
App.=20
2005). Under the first prong, appellant must overcome the strong=20
presumption that counsel's performance falls within a wide range =
of=20
reasonable professional assistance. Andrews, 159 S.W.3d =
at 101.=20
Under the second prong, appellant must show that there is a =
reasonable=20
probability that, but for counsel's errors, the result of the =
proceeding=20
would have been different. Id. at 102. A "reasonable =
probability"=20
is a probability sufficient to undermine confidence in the =
outcome.=20
Id. Appellant has the burden to establish both prongs by =
a=20
preponderance of the evidence. Jackson v. State, 973 =
S.W.2d 954,=20
956 (Tex. Crim. App. 1998). A failure to make a showing under =
either prong=20
defeats a claim of ineffective assistance of counsel. Rylander =
v.=20
State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. =
2003). B.=20
Analysis In this=20
case, we need not consider whether counsel's failure to make a=20
Confrontation Clause objection to the disciplinary forms =
containing=20
statements of non-testifying witnesses rendered his performance =
deficient.=20
E.B.R. has not shown that there is a reasonable probability that, =
but for=20
such errors, the outcome of trial would have been different. =
See Boyd=20
v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991). =
Here, the=20
the Gaines disciplinary form was not the proper subject of a =
Confrontation=20
Clause objection because Gaines testified at the modification =
hearing. E.B.R. =
acknowledges that,=20
"it is true that the State's proof of any of the alleged =
violations is=20
sufficient to support a revocation of probation" but questions =
whether=20
there is a reasonable probability that, but for such errors, the =
juvenile=20
court would have revoked his probation based only on evidence that =
he was=20
rude and disrespectful to Gaines. E.B.R. makes no argument that =
such=20
conduct was not a violation of the JJAEP's rules and thus a =
violation of=20
his probation. Rather, E.B.R. implies that the juvenile court =
would not=20
have revoked his probation based on such a technical or minor =
violation=20
alone. The juvenile court =
has broad=20
discretion to determine a suitable disposition of a child found to =
have=20
engaged in delinquent conduct; this is especially true in hearings =
to=20
modify a disposition. In re D.R.A., 47 S.W.3d 813, 815 =
(Tex.=20
App.--Fort Worth 2001, no pet.). More particularly, in a juvenile=20
probation revocation hearing, the decision whether to revoke rests =
within=20
the discretion of the trial court. T.R.S., 115 S.W.3d at =
320.=20
When reviewing a court's modification of a juvenile's disposition =
on=20
appeal, the controlling issue is whether the evidence is =
sufficient to=20
support the court's finding, by a preponderance of the evidence, =
that the=20
juvenile violated a condition of probation. Id. Here, the =
evidence, namely Gaines's testimony and the disciplinary form she=20
authored, sufficiently support the juvenile court's first written =
finding.=20
We find no current =
law=20
prohibiting a juvenile court from revoking juvenile probation for =
a=20
technical violation. By analogy, courts have held, in criminal =
cases, that=20
community supervision may be revoked for a violation of any =
condition,=20
including violations of any single "technical" condition. =
Nurridin v.=20
State, 154 S.W.3d 920, 924 (Tex. App.--Dallas 2005, no=20
pet.). Here, the =
probation=20
revocation was supported by the juvenile court's first written =
finding.=20
This finding was supported by evidence not subject to a =
Confrontation=20
Clause objection. Thus, we conclude that, even if E.B.R.'s counsel =
erred=20
by failing to lodge a Confrontation Clause objection to the =
disciplinary=20
forms containing statements of non-testifying witnesses, appellant =
has not=20
shown that there is a reasonable probability that, but for any =
such=20
errors, the outcome of the modification hearing would have been =
different.=20
See Andrews, 159 S.W.3d at 102. The failure to =
make a=20
showing under either of the required Strickland prongs =
defeats a=20
claim for ineffective assistance of counsel. Rylander, =
101 S.W.3d=20
at 110-11. Accordingly, because he did not satisfy the second=20
Strickland prong, we hold that E.B.R. has not met his =
burden to=20
show ineffective assistance of counsel by a preponderance of the =
evidence.=20
See Jackson, 973 S.W.2d at 956. We overrule =
E.B.R.'s second=20
point of error.
In his first point =
of error,=20
E.B.R. contends that two of the juvenile court's oral findings =
made at the=20
conclusion of the modification hearing, describing E.B.R.'s =
probation=20
violations, "cannot be used as support for the revocation" of =
E.B.R.'s=20
probation because they were "deleted" from the juvenile court's =
written=20
findings in the modification order. In his third point of error, =
E.B.R.=20
asserts that the juvenile court abused its discretion when it =
found,=20
"On August 27, =
2006,=20
[E.B.R. As discussed, =
there is one=20
sufficient ground for revocation: E.B.R.'s failure to follow the =
JJAEP's=20
rules on August 23, 2006 by being insubordinate and disrespectful =
towards=20
Gaines and by talking without permission. Thus, because one =
probation=20
violation will support the juvenile court's order to revoke =
probation, we=20
need not address E.B.R.'s contentions raised in points of error =
one and=20
three. See Sanchez, 603 S.W.2d at 871.
We affirm the =
judgment of=20
the juvenile court. Laura Carter=20
Higley Justice Panel consists of =
Justices=20
Taft, Hanks, and Higley.=20
2. E.B.R. was 16 years old when the juvenile =
court=20
committed him to the TYC.=20
3. 4.