NUMBER 13-24-00098-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG

IN THE MATTER OF T.T.M.B, A JUVENILE

ON APPEAL FROM THE COUNTY COURT AT LAW OF SAN PATRICIO COUNTY, TEXAS

MEMORANDUM OPINION Before Justices Benavides, Tijerina, and Silva Memorandum Opinion by Justice Silva Appellant T.T.M.B. (Thomas), 1 whose conduct had been previously adjudicated as delinquent, asserts the juvenile court’s modification of his probation to a placement at a secure, post-adjudication juvenile facility constitutes cruel and unusual punishment. See U.S. CONST. amend. VIII. We affirm.

I. BACKGROUND On October 18, 2023, Thomas was adjudicated for evading arrest or detention with a motor vehicle, see TEX. PENAL CODE ANN. § 38.04(b)(1)(B), and possession of marijuana in an amount of two ounces or less. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(1). The juvenile court placed Thomas on probation with the San Patricio County Juvenile Probation Department (the Department). 2 As part of Thomas’s probation conditions, he was ordered to reside at Serving Children and Adults in Need (SCAN), obey all the rules of the facility, and remain at the facility until successfully discharged.

Less than two months later, Thomas was unsuccessfully discharged from SCAN, and the State filed a motion to modify disposition. The State’s motion alleged that Thomas had violated several conditions of his probation, namely, absconding SCAN after assaulting another resident.

Following a hearing, wherein Thomas pleaded true to the allegations, the juvenile court found that Thomas had violated the conditions of his probation and needed further rehabilitation. The juvenile court ordered placement at Amador R. Rodriguez Academic and Vocational Center, a secure, post-adjudication juvenile facility, which provides education and trauma-based counseling for males between the ages of fourteen and seventeen.

This appeal followed.

II. CRUEL AND UNUSUAL PUNISHMENT Thomas argues the juvenile court’s requirement that he attend a secure, post- adjudication juvenile facility “violates the Cruel and Unusual Punishment Clause of the Eighth and Fourteenth Amendments to the United States Constitution and article I, section 13 of the Texas Constitution.” Specifically, Thomas contends that considering the facts and circumstances involved, the juvenile court’s modification is grossly disproportionate to the underlying offenses and violations. 3 An allegation of excessive or disproportionate punishment is a legal claim “embodied in the Constitution’s ban on cruel and unusual punishment” and based on a “narrow principle that does not require strict proportionality between the crime and the sentence.” State v. Simpson, 488 S.W.3d 318, 322–23 (Tex. Crim. App. 2016) (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)); see U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”); see also Meadoux v. State, 325 S.W.3d 189, 193 (Tex. Crim. App. 2010) (acknowledging that the Eighth Amendment is applicable to the states by virtue of the Fourteenth Amendment (citing Robinson v. California, 370 U.S. 660, 666–67 (1962))). A successful challenge to proportionality is exceedingly rare

Additionally, during the one-month period that Thomas was in detention awaiting adjudication, Thomas accumulated over fifteen incident reports for refusing to follow staff instructions. While awaiting the modification hearing, Thomas received “over 4” incident reports. and requires a finding of “gross disproportionality.” Simpson, 488 S.W.3d at 322–23 (citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d). This is also true where such claims are raised in juvenile cases, which while classified as civil proceedings, are quasi- criminal in nature. In re H.V., 252 S.W.3d 319, 323 (Tex. 2008) (“Juvenile cases, though classified as civil proceedings, are quasi-criminal in nature and frequently concern constitutional rights and procedures normally found only in criminal law.”); see also Ex parte T.W.A., No. 10-22-00022-CV, 2022 WL 3655150, at *2 (Tex. App.—Waco Aug. 24, 2022, no pet.) (mem. op.) (“[I]t is not improper to use criminal case authority, statutes, or rules to dispose of an issue in a juvenile case appeal; and we will use the same when necessary.”). Thus, we examine a juvenile’s claim of cruel and unusual punishment in the context of criminal confinement. See In re H.V., 252 S.W.3d at 323.

Assuming arguendo that a modification of probation conditions ordering residency at an inpatient facility constitutes a punishment for purposes of Eighth Amendment protections, 4 to preserve a complaint that a punishment is grossly disproportionate or cruel and unusual for appellate review, a complainant must present to the trial court a “timely request, objection, or motion” stating the specific grounds for the ruling desired.

TEX. R. APP. P. 33.1(a)(1); see Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App.

1986) (“It is well settled that almost every right, constitutional and statutory, may be waived by the failure to object.”); see also In re J.M.E., No. 04-19-00062-CV, 2020 WL 86212, at *3 (Tex. App.—San Antonio Jan. 8, 2020, no pet.) (mem. op.) (concluding juvenile forfeited his Eighth Amendment complaint by failing to make an objection in the juvenile court); In re M.N., No. 02-18-00044-CV, 2019 WL 1715981, at *6 n.3 (Tex. App.— Fort Worth Apr. 18, 2019, no pet.) (mem. op.) (same); In re P.D.W., No. 12-17-00197-CV, 2017 WL 6350143, at *1 (Tex. App.—Tyler Dec. 13, 2017, no pet.) (mem. op.) (same).

At no time prior to this appeal did Thomas argue that the juvenile court’s modification order requiring residency at a secure facility was disproportionate to the previously adjudicated offenses or his probation condition violations nor did he argue the order was in violation of his constitutional rights. Accordingly, Thomas failed to preserve his complaint for review. See TEX. R. APP. P. 33.1(a); Smith, 721 S.W.2d at 855; see also In re J.M.E., 2020 WL 86212, at *3. We overrule Thomas’s sole issue.

III. CONCLUSION We affirm the juvenile court’s order.

CLARISSA SILVA Justice

Delivered and filed on the 9th day of May, 2024.