Opinion
06-22-00023-CV
10-20-2022
IN THE MATTER OF D.T.W., A JUVENILE
Date Submitted: October 12, 2022.
On Appeal from the County Court at Law Bowie County, Texas Trial Court No. 20JV0019-CCL
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
Scott E. Stevens, Justice
D.T.W. appeals the juvenile court's dispositional order of transfer to the Texas Department of Criminal Justice (TDCJ). On appeal, D.T.W. claims that the juvenile court did not have jurisdiction to make this order because the record did not establish that D.T.W.'s release on parole had been revoked. D.T.W. also claims that the record does not establish that the release or transfer hearing was held within sixty days of the case's referral to the juvenile court.
Because we find (1) that the record supports a finding that parole was in fact revoked and (2) that the record shows that the hearing was timely held, we affirm the juvenile court's judgment.
I. Background
In April 2020, the State petitioned the juvenile court to waive its jurisdiction and transfer D.T.W.'s case to the district court. The petition alleged two felonies and three misdemeanors. On June 25, 2020, the juvenile court held an adjudication hearing and determined that D.T.W. had engaged in delinquent conduct. After imposing a determinate sentence of ten years, the juvenile court committed D.T.W. to the custody of the Texas Juvenile Justice Department (TJJD). Sometime in October or November 2021, D.T.W. was released under supervision.
The court determined that D.T.W. had engaged in deadly contact by discharging a firearm at or near a person. See Tex. Penal Code Ann. § 22.05(b). The State's third petition alleging delinquent conduct abandoned the other felony and the misdemeanor allegations.
See Tex. Hum. Res. Code Ann. § 245.051. A document titled "Notification to Juvenile Court / Chief Juvenile Probation Officer" in the clerk's record includes the following statement: "On 10/15/2021, the above-mentioned youth will be: released from Tamayo House to 3921 HAZEL STREET TEXARKANA TX 75569." That document is dated November 1, 2021, and is file-stamped November 15, 2021.
On March 3, 2022, the juvenile court held a release or transfer hearing. D.T.W. was eighteen years and seven months old at the time. Alanna Bennett, a court liaison for the ¶JD, testified that D.T.W.'s supervision was revoked on December 16, 2021, because Bennett saw him in a video recording on Facebook "with several guns and at least two other people rapping about killing another gang member." Bennett explained that she saw that as "very threatening type behavior."
At the end of the hearing, the juvenile court granted the ¶JD's motion and transferred D.T.W. to the TDCJ to serve the remainder of his ten-year sentence.
II. Standard of Review and Applicable Law
"We review for an abuse of discretion a trial court's decision to transfer a juvenile from the ¶JD to the TDCJ." In re R.O., No. 06-16-00040-CV, 2017 WL 382420, at *2 (Tex. App - Texarkana Jan. 27, 2017, pet. denied) (mem. op.). "An abuse of discretion occurs when the court's action is arbitrary and unreasonable or without reference to any guiding rules and principles." Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
In a situation such as D.T.W.'s, where he was adjudicated and committed to the ¶JD's custody, then released under supervision, certain circumstances must occur before the ¶JD can refer the child to the juvenile court for approval of his transfer to the TDCJ. See Tex. Hum. Res. Code Ann. § 244.014(c) (Supp.). If the evidence supports a finding that D.T.W. was released under supervision and that his supervision was subsequently revoked, ¶JD could then refer his case to the juvenile court for transfer.
"If a child is released under supervision, a juvenile court adjudication that the child engaged in delinquent conduct constituting a felony offense, a criminal court conviction of the child for a felony offense, or a determination under Section 244.005(4) revoking the child's release under supervision is required before referral of the child to the juvenile court under Subsection (a)." TEX. HUM. RES. CODE ANN. § 244.014(c).
III. Record Demonstrates that D.T.W.'s Parole Was Revoked
In his first point of error, D.T.W. claims that, because the pleadings did not establish a revocation of his release under supervision, the juvenile court lacked jurisdiction to transfer D.T.W. We disagree.
Where a child subject to ¶JD's custody has been "released under supervision," "a determination . . . revoking the child's release under supervision" authorizes the case to be referred to the juvenile court. Tex. Hum. Res. Code Ann. § 244.014(c). If that requirement is met, a child sentenced to commitment with ¶JD, and not yet nineteen years old, may be "referred] . . . to the juvenile court that entered the order of commitment for approval of the child's transfer to the Texas Department of Criminal Justice for confinement" if the child has not yet completed his sentence and "the welfare of the community requires the transfer," "regardless of whether the child was released under supervision." Tex. Hum. Res. Code Ann. § 244.014(a).
D.T.W. argues that "the appellate record does establish that D.T.W. was released [under supervision], but does not establish that his [release under supervision] was revoked." Further, he argues that "the appellate record does not contain any documentation regarding any revocation of D.T.W.'s [release under supervision]." Therefore, according to D.T.W., the absence of a written order revoking his release under supervision deprived the trial court of jurisdiction. D.T.W. acknowledges that he cannot direct this Court to any supporting caselaw. Nor have we found any authority to support his position. Even so, the language of the statute is clear-it only requires "a determination . . . revoking the child's release under supervision." Tex. Hum. Res. Code Ann. § 244.014(c).
The State argues that D.T.W. waived this argument by not making it to the juvenile court. Because D.T.W. couches his complaint as one amounting to fundamental error, we will address it. See TEX. FAM. CODE ANN. § 51.09 (juvenile's waiver of rights must be, inter alia, made in writing or in recorded court proceedings).
D.T.W. was adjudicated guilty of delinquent conduct and committed to the ¶JD on June 25, 2020; he was assessed a determinate sentence of ten years. D.T.W. was released under supervision around October or November 2021. According to Bennett, that release was revoked on December 16, 2021. Thus, the record in this case demonstrates that (1) D.T.W. was adjudicated to have engaged in delinquent conduct; (2) the trial court committed D.T.W. to the ¶JD for a determinate sentence of ten years; (3) D.T.W. was released under supervision; and (4) D.T.W.'s release under supervision was subsequently revoked. As a result, we reject D.T.W.'s argument that the record does not demonstrate that D.T.W.'s release under supervision was revoked. We, therefore, overrule D.T.W.'s first point of error.
IV. Record Establishes Release or Transfer Hearing Held Within Sixty Days of Referral
D.T.W. next claims that the record does not establish that the release or transfer hearing was held within sixty days of the case's referral to the juvenile court. The Family Code requires that a release or transfer hearing "be held not later than the 60th day after the date the [juvenile] court receives the referral." Tex. Fam. Code Ann. § 54.11(h).
The release or transfer hearing was held on March 3, 2022. The juvenile court's order transferring the case to the TDCJ states that the "transfer / release hearing was held prior to the 60th day after the date the Court received the first referral."
"We indulge every presumption in favor of the regularity of the trial court's judgment and the recitations therein." In re D.B., 457 S.W.3d 536, 538 (Tex. App.-Texarkana 2015, no pet.) (citing Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh'g)). "This means we will presume the recitations contained in the transfer order are true unless the record contains controverting evidence demonstrating their falsity." Id. at 539 (citing Breazeale, 683 S.W.2d at 450).
D.T.W. has not rebutted the presumption of regularity present in the record. There being nothing rebutting the statement in the juvenile court's transfer order that the hearing was held within sixty days of referral from TJJD, we overrule D.T.W.'s second point of error.
D.T.W. also claims that this purported error deprived the court of jurisdiction to conduct the release or transfer hearing. We do not need to address this argument because we find the record indeed supports the timeliness of the hearing.
V. Conclusion
We affirm the juvenile court's order.