### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00590- CV

In t he M at te r of T. E., App e lla nt

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 98TH JUDICIAL DISTRICT NO. J-21 ,607 , HO NORAB LE W. JEANNE MEURER, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N T.E., t hen thi rtee n y ear s old, was adjudicated delinquent on two counts of ag g ravated sexual assault in May

2003. See Tex. P en. Code Ann. § 22.021 ( West S upp. 2004-0 5 ). He was place d on probation in the custody of his mother. I n April 2004, the S tate filed a motion to modify dispositi on that alleg ed T.E. had viol ated his probation. A hearing was he ld on the motion, and T.E.
wa s c omm itt e d to the Te xas Y ou th C omm iss ion . We a ff ir m.
BACK GR OUND On May 8, 2003, the district court , s i t t i n g as a juve nile court, found be y ond a
re a so na ble do ub t th a t T .E . h a d c omm itt e d tw o s e xua l a c ts wi th a c hil d y oung e r tha n fo ur te e n; t he se acts c onstitut ed aggrav at ed sexual assault. Se e id . §§ 22.021(a) (1), .021( a)( 2)(B ). T.E. wa s sentenc ed to probation in the custody of hi s mother, Brenda Elendu, wit h the probation set to expi re2

on May 20, 2004. Among the conditions of the probation were : School attendance and obedie nce to published school rules and r eg ulations; and full participation, attenda nce, a nd completion of counseling with Dr. Nicola s Carra sco. Suspension from school counted as an une x cused a bsence
. T.E. violated the r

ules of his pr obation. Among other thing s, he wa s suspended fr om
sc ho ol; he sk ipp e d me e tin g s w ithDr . Ca rr a sc o; a nd he wa s c a

ug ht i n p os se ssi on

of po rn og ra ph ic materia ls, which viol ated the rules of his counseling
. After T.E. was taken into custody , his mother
succes s fu l l y s oug ht to have the juvenile public de fende r re place d with appointed counse l, Don Moreha rt. The State filed a motion to modify dispositi on and to have T.E. committed to the Texas Yout h Co mm is s io n . T
. E
. w a s s e r v e d w it h a s u mm o n s an d a c o p y o f th e mo ti o n in a d v an c e of an April 13, 2004 hea

ring ; his mot her r efused t o ac ce p t s ervice. At the Apr il 13 hearing , Moreha rt
announce d not rea dy , and the he aringwas postp o n ed u n t il April 23. At that hearing , the district
c o u rtg r an t e d

t h e S t a t e ’ s m o t i o nt o m o d i f y. Th e he ari ngbe g an w ithMs. El e nd u p ro te sti ngtha

t sh e wa s n ot r e a dy

fo r t ri a l:
M S. E L E N D U : Your Honor , I n e e d to r e s e t th is th in g b e c a u s e I ’ m n o t r e a dy

and I —I ’m g oing to hire someone e lse. TH E CO UR T: No , ma ’a m.
She re pe a te dly re qu e ste d mor e tim e say ing that sh e wa nte d to re ta in c ouns e l to re place M oreh a rt , her son’ s court-a

ppointed attorney . The court ref used t o g rant a continuance , informing Ms. Elendu that she should have othe r counse l present if she did not want Moreha rt to repr esent T.E.3 The State a

nd Moreha

rt announc ed re ady . The d i s t ri ct judg e informe d T.E. of the State’s alleg ations and of his c onstitut ional rig hts. The other witnesses wer e sworn, but Ms. Ele ndu
re ne we d h e r p ro te statio ns :
MS. EL ENDU: I ’m not awa re of what’s g oing on. THE COURT: Raise y our— MS. EL ENDU: Idon’t know w h at ’s go i n g on. And I can’ t talk if Idon’t know what’s g oing on. When called to testify

as the State’s f

irst witness, Ms. Elendu said sh e wa n t ed h er own attorne y befor e she w ould answer questions. She relente d afte r t h e j u d ge informed he r that she c ould be
arr ested. Dur ing the State’s direc t examination, she repeate dly stated t hat s he did not know what wa s g oing on a

nd that she wa

nted a law y er. Mor ehar

t rec alled Ms. Elendu l ater in the proce eding , and sh e ans we re d h is q

ue sti on s w ith ou t c omp la int
. After argument, the judg e found T.E . to be a threat to the community and committed him to t he Te xas Y ou th C omm iss ion . T .E . b ri ng s th is a pp e a l.
DI SCU SSIO N T.E. contends that his mot her la cked “ rea sonable n o tice” of the hea ring and the contents of the motion to modify d i sposition, and that this violated his due proc ess rig hts and the require ments of the Tex as Family Code. U.S. Const. amend. XI V; Tex. Fam. Code Ann. § 54.05( d) (We st 2 00 4- 05 ). (“ Re a so na ble no tic e of

a he ari ngto m od if

y dis po sit ion shal l be g ive n to a ll parties.” ). He emphasizes the fa ct that his mother did not rec eive a summons or a c opy

of the State’sThe re cord r efle cts that T.E. and Mor ehar t met twice bef

ore the hear ing in que stion. 1 4 petition and direc ts us to Ms. El endu’s statem en t s o n the re cord that she did not know what wa s g oing on a

nd neede d more time to hire a new law y er. Neither of these points is disposi tive of the matter be fore us. The defe ndant in a modification hear ing is not entitled to service of proc ess but only rea sonable no t i ce. See Te x. F a m. C od e Ann. § 5 4. 05 (d ); In re D.E.P. , 512 S.W .2d 789, 791 (Tex. Civ. App.—Houston [ 14th Dist.] 1974, no writ). When a c hild’s attorney appea rs, does not file a moti on for continuance, and t he child and par ents are prese nt and fully advised by

the cour t as to the issues befor e the cour t, rea sonable notice is presumed. Se e In re . B .N. , No. 03-98-575- CV, 1999 Tex. App. L EXI S 6331, at *2 (Au s t i n Aug ust 26, 1999, no pet.) (not desig nated f or p u b l i ca t i o n ) ( ci t i n g In re. D.E .P. , 512 S.W .2d at 791).

Her e, T.E. and his mother were present at the hearing and T.E.’ s counsel announc ed
rea dy
. The c ourt then desc ribed at leng th those activities that the State alleg ed violated T.E.’ s

1 pr ob a tio n:

! on tw o d ay s h e fa ile d to a tte nd c ouns e lin g , on an oth e r day wa s 20 mi nu te s late and sp e nt 3 0 mi nu te s in

the bathr oo m; ! at t i mes he would c ome to counseling without a notebook or a writing ins tr ume nt, a nd wo uld fa il t o c omp le te a ssi g nme nts ; ! h e l i e d

i ng r o u p t h e r a p y; ! he imitated a striptea se on a pole at school and ma de a le wd gesture by placing a water bottle at his g roin and squirting water out of the bottle;
! he wa s found in possession of “sexually inappropriate re ading materia l”; andThe trial court treated Ms. E lendu’s re quests for more time as a motion for c ontinuance, 2 which the c ourt denied. Whether to g rant a motion for continuance is w ithin the sound discretion of the trial cour

t. BMC Software Belgium, N.V. v. Marc hand , 8 3 S. W.3 d 7 89 , 8 00 (T e x. 20 02 ); see als o Bu rg ess v . S

tat e , 8 16 S.W. 2d

42 4, 42 8 (Tex . Cr im. Ap p. 19 91 ) ( “ A r e qu e st f or c ha ng e in counsel c annot be made so as to obstruc t the order ly proce dure in the courts or to interfer e with the fair a dminist ration of justice.” ). To the extent that T.E.’s appea l ma y be construed as an attack on the denial of

his mother ’s reque st f

or a continuance , we f

ind that beca

use T.E. a nd Ms. Elendu had re as o n ab l e n o t i ce o f th e he ar i n g t o m o d i fy , t h e tr i al co u rt d i d n o tab u s e i t s d i s cr et i o nb y d en y i n g a continuance
. 5 ! he wa s f

re qu e ntl y la te to s c ho ol a

nd oth e rw ise br ok e sc ho ol r ule s.
The c ourt furthe r explained to T.E. his rig hts to be represented by counsel, to re fra in from selfincrimination, to confront witnesse s, and t o p ut the State to its proof. T.E. indicated tha t he understood his rig hts and the cha rg es ag ainst him. Ms. Elendu was prese nt during the cour t’s explanations. I n addit i o n, Ms. Elendu’s par ticipation in her son’s judicial proc ess ca sts doubt on her a ssertions of ignor ance of the purpose of the April 23 hea

ring . The re turn of summons for the April 13 hea

ring indicates that Ms. Elendu persona lly ref used ser vice of the motion to modi fy . She
was involved enoug h in the proce eding s to decide that her son’s juvenile public de fende r should be
re pla c e d, to r e qu e st that Mo re ha rt be re pla c e d, to a

tte nd pr ior he ari ng s, and

to b e pr e se nt at

the Ap ri l 2 3 h ea ri n g. We hold th a t th e d is tr ic t c o u rt s a ti s f ie d th e n o ti c e s ta

n d ar d f o r th e h e ar in g on the
m o t i o nt o m o d i f

y. See Te x. F a m. C od e Ann. § 5 4. 05 ; In re D.E.P. , 512 S.W .2d at 791. 26 CO NC LU SION B e c a us e w e f

i n d t h a t a l l p art i e s h a d r e a s o n a b l e n o t i c e o f h e ar i n g o n t h e M o t i o n to Modify , we aff

irm T.E.’s committal to the Texas Youth Comm ission.

Be a Ann Smith, J ustice Be fore Chief J ustice L aw, Justi ces B . A. Smith and Pemberton Affir med Filed: Jul y

7, 2005