Opinion
No. 07-16-00013-CV
02-12-2018
IN THE MATTER OF D.J., A JUVENILE
On Appeal from the Juvenile Court Bell County, Texas
Trial Court No. 76,558; Honorable Rebecca Depew, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
In 2013, when D.J. was sixteen, he was found to have engaged in delinquent conduct by committing aggravated sexual assault of a child and indecency with a child by contact. Following a disposition hearing, the juvenile court sentenced D.J. to a determinate sentence of five years, suspended in favor of five years of court-ordered supervision. See TEX. FAM. CODE ANN. §§ 54.04(d)(3), 54.04(q) (West Supp. 2017). In 2014, the State moved to modify D.J.'s disposition and commit him to the Texas Juvenile Justice Department (TJJD) for violations of his supervision. § 54.05. Following a hearing on that motion, the trial court found that D.J. did violate the terms and conditions of his court-ordered supervision and committed him to TJJD for a five-year determinate sentence. After D.J. had served approximately fourteen months of his sentence, the juvenile court held a release or transfer hearing, pursuant to section 54.11 of the Texas Family Code. At that time, the juvenile court found D.J. was still in need of rehabilitation and that he was a high-risk offender. The court further found that no other TJJD programs would benefit him and signed an Order of Release to the Institutional Division of the Texas Department of Criminal Justice for D.J. to serve the remainder of his determinate sentence. By a single issue, D.J. contends the juvenile court abused its discretion in transferring him to the Texas Department of Criminal Justice (TDCJ). We affirm.
Originally appealed to the Third Court of Appeals, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV'T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Third Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3
BACKGROUND
From a young age, D.J. moved from relative to relative in four different states before moving to Texas to live with his mother. Each move was precipitated by D.J.'s poor behavior. Eight days after moving to Texas, D.J. took his younger sister to a wooded area where he sexually assaulted her and told her to keep it a secret.
As a result of this incident, D.J. was adjudicated for engaging in delinquent conduct and received a five-year determinate sentence, suspended for five years with placement outside his home and in the custody of the Texas Department of Family and Protective Services. One of the conditions of D.J.'s suspended sentence was voluntary placement in a sex offender treatment center for not less than six months or until successfully discharged.
D.J. was unsuccessfully discharged from the center as well as its sex offender treatment program. Thereafter, the State pursued modification of D.J.'s supervision, and following a hearing at which D.J. pleaded true to the allegation that he violated the conditions of his supervision, the juvenile court ordered him committed to TJJD for the remainder of his five-year determinate sentence.
While at TJJD, D.J. was provided with orientation for juveniles who are unable to complete their determinate sentences prior to their nineteenth birthday. During orientation, he was informed of rules, programs, and expected behavior. While at TJJD, he exhibited poor behavior and was defiant of authority. According to the evidence subsequently presented, in a twelve-month period, there were 178 documented incidents of misconduct. D.J.'s misconduct also resulted in injuries to staff members.
TJJD officials reviewed D.J.'s progress, behavior, length of stay, program completions, and other factors associated with D.J.'s risk of re-offending. All participants unanimously agreed that D.J. should be transferred to TDCJ for the remainder of his sentence. That recommendation was testified to by TJJD's court liaison at D.J.'s release or transfer hearing. At the conclusion of that hearing, the juvenile court agreed and entered its Order of Release to the Institutional Division of the Texas Department of Criminal Justice. The juvenile court later entered Findings of Fact and Conclusions of Law. D.J. then filed a timely Notice of Appeal.
APPLICABLE LAW
After a juvenile with a determinate sentence reaches age sixteen but before reaching age nineteen, TJJD may refer the juvenile to the juvenile court if the juvenile's sentence has not been completed and the juvenile's conduct indicates that the welfare of the community requires the transfer. See TEX. HUM. RES. CODE ANN. § 244.014(a) (West Supp. 2017). See also In re N.K.M., 387 S.W.3d 859, 864 (Tex. App.—San Antonio 2012, no pet.). On receipt of a referral under section 244.014(a), the juvenile court shall conduct a release or transfer hearing to determine whether the juvenile is to be returned to TJJD or transferred to TDCJ for completion of his sentence. See TEX. FAM. CODE ANN. § 54.11(a), (i) (West Supp. 2017).
In making a determination under section 54.11, the court may consider the experiences and character of the juvenile before and after commitment to TJJD, the nature of the penal offense committed and the manner in which the offense was committed, the abilities of the juvenile to contribute to society, the protection of the victim or any member of the victim's family, the recommendations of TJJD, county juvenile board, local juvenile probation department, and prosecuting attorney, the best interests of the juvenile, and any other factor relevant to the issue to be decided. § 54.11(k). The juvenile court is not required to consider all the factors, and the court is expressly allowed to consider other unlisted but relevant factors. See In re C.L., 874 S.W.2d 880, 886 (Tex. App.—Austin 1994, no writ). See also In re N.K.M., 387 S.W.3d at 864. Similarly, the juvenile court may assign different weight to the various factors it does consider. Id.
STANDARD OF REVIEW
We review a juvenile court's decision to transfer a juvenile from TJJD to TDCJ based upon an abuse of discretion standard. In re J.J., 276 S.W.3d 171, 178 (Tex. App.—Austin 2008, pet. denied). We review the entire record to determine whether the juvenile court acted without reference to any guiding rules or principles of law. Id. If some evidence exists to support the juvenile court's decision, there is no abuse of discretion. In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006, pet. denied). We do not substitute our decision for that of the juvenile court and we reverse its order only if the juvenile court acted in an unreasonable or arbitrary manner. In re J.L.C., 160 S.W.3d 312, 313 (Tex. App.—Dallas 2005, no pet.).
ANALYSIS
By his sole issue, D.J. argues the juvenile court abused its discretion in transferring him to TDCJ. We disagree.
In support of his argument, D.J. maintains that certain successes while under supervision are indicative of his rehabilitation. He completed an anger management program and a post-traumatic stress disorder program. He points out that he had six days without behavioral issues just prior to his transfer hearing, which according to him, demonstrated his ability to follow rules. He testified at his hearing and claimed he would not commit the offenses he had in the past. According to D.J., the presence of his mother, her best friend, and his godfather at his hearing indicated a positive support group upon his release.
D.J. also presented the testimony of a psychologist who, although he did not personally evaluate D.J., reviewed all his records. The psychologist testified that D.J. was sexually abused at a young age and had many negative influences in his life. Solely from reviewing records and test scores, he labeled D.J. a moderate risk for re-offending. But he added that without having personally evaluated D.J., he did not want to offer an opinion on whether D.J. should be released.
The psychologist also offered general expert testimony on the development of a young male's brain. He testified that the brain is not fully developed in a male until he is in his mid-twenties. He explained that the frontal lobe is instrumental in decision-making and impulse control, and in his opinion, a juvenile would be more amenable to treatment because the juvenile brain is still growing and learning. He further opined that a transfer to TDCJ would mean less treatment options for D.J.
The State's witnesses, which included D.J.'s supervision officer and the court's liaison for TJJD, presented a different perspective. D.J.'s supervision officer offered testimony on D.J.'s background which included moving from relative to relative in different states when a relative was no longer able to handle D.J.'s behavior. He described the sexual assault by D.J. on his younger sister and testified to possible inappropriate sexual behavior by D.J. with another sibling when he lived in Alabama. While on supervision and seeking treatment at a sex offender center, D.J. had 151 incident reports in a ten-month period. He struggled with peers and staff and was an escape risk. He had a minimum of ten physical interventions before being unsuccessfully discharged. After that, he spent time in a psychiatric hospital. While at that hospital, he threatened suicide and was transferred to another facility before being released to the county detention center.
The court's liaison testified that in addition to the 178 incidents of misconduct while at TJJD, D.J. committed eighteen major rule violations, eleven of which were confirmed following informal hearings. Examples of major violations included fighting, possession of contraband, threats, assault, fleeing apprehension, inappropriate sexual conduct, or committing a new offense. The evidence confirmed major violations of self-tattooing, possession of a prohibited item (a razor blade), tampering with safety equipment, vandalism, assault, fondling a peer, and openly masturbating.
During his testimony, D.J. specifically disputed that he fondled one of his peers.
The court's liaison also offered testimony that D.J. made little progress in other programs offered. Specifically, the Connections Program is a five-stage program designed to evaluate a juvenile's behavior and academic progress every thirty days. The fifth stage prepares a juvenile for parole. After fourteen months, D.J. was still on stage one. The liaison recommended that based on D.J.'s lack of progress, behavior, length of stay, lack of program completions, and other factors, D.J. should be transferred to TDCJ.
D.J. testified and asked the court for another chance and vowed to follow even the strictest rules. When a juvenile commits a felony and violates the conditions of his supervision, the juvenile court has discretion to decline third and fourth chances when a second chance has been abused. In re J.P., 136 S.W.3d 629, 633 (Tex. 2004). D.J.'s first chance came when he was placed on court-ordered supervision for five years. He was given a second chance when he was sent to TJJD, where he was offered numerous programs and services. Despite those additional chances, while at TJJD he completed only two programs and had numerous major and minor rule violations. In addition, he defied authority and was involved in incidents that injured staff. Over a fourteen-month period, D.J. repeatedly demonstrated a failure to follow rules.
Although there was evidence that D.J. completed two programs, there was also evidence that he was not applying what he learned in his every-day life. Considering D.J.'s age, the juvenile court was faced with two options—transferring D.J. to TDCJ or releasing him on parole. Given the seriousness of the sexual offenses committed against his younger sister, several incidents of sexual misconduct at TJJD, and the overwhelming evidence of defiant and disruptive behavior, we conclude the juvenile court did not abuse its discretion in ordering that D.J. be transferred to TDCJ. D.J.'s sole issue is overruled. See In re J.J., 276 S.W.3d at 180.
CONCLUSION
The juvenile court's Order of Release to the Institutional Division of the Texas Department of Criminal Justice is affirmed.
Patrick A. Pirtle
Justice