Opinion
14-23-00514-CV
12-19-2024
IN THE MATTER OF K.T.S., A JUVENILE
Do Not Publish - Tex.R.App.P. 47.2(b)
On Appeal from the County Court at Law #2 Galveston County, Texas Trial Court Cause No. 21JV079
Panel consists of Chief Justice Christopher and Justices Spain and Poissant (J. Spain Concurring in the Judgment without Opinion).
MEMORANDUM OPINION
Margaret "Meg" Poissant Justice
Appellant K.T.S., a juvenile, appeals the trial court's order transferring him to the custody of the Texas Department of Criminal Justice (TDCJ) to serve the remainder of his eight-year determinate sentence for aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 29.03. Appellant contends that the trial court's decision to transfer him constitutes an abuse of discretion. Because we conclude that the trial court acted within its discretionary authority, we affirm the transfer order.
Background
The State filed a petition alleging that appellant was over the age of ten years and under the age of seventeen years when he committed aggravated robbery with a deadly weapon on June 17, 2021. Appellant entered into a plea agreement and on January 5, 2022, the juvenile court signed an adjudication judgment finding appellant to have engaged in delinquent conduct. The court sentenced him to a term of 8 years commitment to the Texas Juvenile Justice Department with possible transfer to the institutional division of the Texas Department of Criminal Justice.
The Texas Juvenile Justice Department requested a transfer hearing on May 15, 2023. The hearing was held on June 21, 2023.
During the hearing, evidence was presented that while at the Texas Juvenile Justice Department, appellant completed several behavioral programs. At the time of the hearing, he was in Stage 4 of a 5-stage program and was not eligible for promotion to the final stage of the program. Appellant had 98 rules violations, including 3 major incidents, during the time he was at the Texas Juvenile Justice Department. Upon the conclusion of the hearing, the trial court signed an order approving the transfer of appellant to TDCJ.
Standard of Review
In reviewing the trial court's decision to transfer appellant from the custody of the Texas Juvenile Justice Department to TDCJ, we employ an abuse of discretion standard. In re J.M.O., 980 S.W.2d 811, 812-13 (Tex. App.-San Antonio [4th Dist.] 1998, pet. denied); K.L.M. v. State, 881 S.W.2d 80, 84 (Tex. App.-Dallas [5th Dist.] 1994, no writ). We are to review the entire record to determine whether the trial court acted without reference to any guiding rules and principles. K.L.M., 881 S.W.2d at 84. We may not reverse a trial court's decision merely because we disagree with that decision, so long as the trial court acted within its discretionary authority. In re R.G., 994 S.W.2d 309, 312 (Tex. App.-Houston [1st Dist.] 1999, pet. denied).
Analysis
In appellant's sole issue on appeal, appellant contends that the trial court abused its discretion by transferring him to TDCJ. When the Texas Juvenile Justice Department refers a juvenile who is serving a determinate sentence to a trial court for a possible transfer to TDCJ, the court must set a hearing. See Tex. Fam. Code Ann. § 54.11(a). At the conclusion of the hearing, the court may either order the juvenile's return to the Texas Juvenile Justice Department or transfer the juvenile to TDCJ's custody for the completion of the sentence. See Tex. Fam. Code Ann. § 54.11(i). At the hearing on a request to transfer a juvenile to the TDCJ, the judge may consider: (i) the experiences and character of the juvenile before and after commitment to the TJJD; (ii) the nature of the penal offense and the manner in which the offense was committed; (iii) the abilities of the juvenile to contribute to society; (iv) the protection of the victim of the offense or any member of the victim's family; (v) the recommendations of the Texas Juvenile Justice Department and the prosecuting attorney; and (vi) the best interests of the juvenile and any other relevant factors. See Tex. Fam. Code Ann. §54.11(k). Evidence of each listed factor is not required, and a juvenile court may assign different weights to the factors available for consideration. See In re J.J., 276 S.W.3d 171, 178 (Tex. App.-Austin 2008, pet. denied).
According to the Youth Behavior Summary conducted after appellant had spent 10 months in the Texas Juvenile Justice Department, appellant had been admitted to all three programs in the Violent Intervention Continuum: Intensive Intervention Program, Redirect, and Phoenix. The Texas Juvenile Justice Department placed appellant in these programs because of his "verbally and physically assaultive behaviors." The summary assessed appellant as doing well when in a program but that he struggled to use the skills he learned in the program after he returned to general population.
The Youth Behavior Summary stated that appellant was referred to security twice and admitted once during his initial assignment at McLennan Orientation. Appellant was permanently assigned to Evins Regional Juvenile Center on April 27, 2022 where he remained until December 15, 2022. During that time appellant was referred to security 14 times and was admitted 8 times. On December 15, 2022, appellant was placed in the Phoenix program and returned to Evins general population on January 24, 2023.
Prior to his placement in Phoenix, appellant had four proven Level II hearings for assault causing bodily injury to another youth, unauthorized physical contact with another youth, horseplay, and assault unauthorized contact with another youth. The last hearing prompted appellant's placement in Phoenix; however, while the hearing had proven true, he was removed from the program forty days later after the hearing was overturned on appeal.
After appellant's removal from the Phoenix program, he continued to violate rules and exhibit behavioral issues. Four days after his return to general population, he was placed on therapeutic repair for assault of a youth. The overall recommendation of the Youth Behavior Summary from February 10, 2023 stated: "Due to his lack of progress in reducing his risk factors and continue to demonstrate aggressive responses to situations, early transfer to TDCJ is recommended."
The subsequent report from the TDCJ Court Liaison, Alanna Bennett, on May 24, 2023 also recommended transfer. That report also referenced continued behavioral issues. At the time of the report, appellant had 92 documented incident reports on file resulting in 17 referrals to the regulation and safety unit and 10 admissions.
The Regulation and Safety Unit is a self-contained program for youth who exhibit assaultive or disruptive to the point where they need to be removed from general population.
A psychological evaluation of appellant was conducted by Dr. Hamady on January 31, 2023, before the first recommendation for appellant to be transferred early. The psychological evaluation did not recommend appellant for early transfer. However, the Youth Behavior Summary from February 10, 2023 took the psychological report into consideration before ultimately concluding a recommendation of early transfer. That behavior summary stated that in the time since the psychological evaluation, appellant had incurred 24 additional minor and major rule infractions.
Overall, the Youth Behavior Summary stated, in reference to appellant, "Given his inability to sustain progress, his assaultive behaviors, and after receiving multiple interventions, he has provided evidence that he is not willing to participate in the rehabilitative programming offered." Further, appellant "has not completed any of his specialized treatment programs. . ." and "[h]is motivation to make progress in the last couple months before his early transfer hearing indicates that [appellant] is capable of complying with program expectations when he chooses."
Appellant contends that the Texas Juvenile Justice Department did not utilize every program at its disposal before moving for the early transfer hearing because appellant was not placed in the Phoenix Max program. According to the testimony of Tami Coy, an employee of the Texas Juvenile Justice Department who oversees the sentenced offender department, appellant did not qualify for the program. In order to qualify for Phoenix Max, appellant must have exhibited aggressive behavior while in the Phoenix program. Appellant did not demonstrate aggressive behavior while in Phoenix, but because his Level II hearing decision was overturned, appellant was returned to general programming and was no longer in the Phoenix program. Ms. Coy further testified that appellant had been placed in all three of the Violence Continuum programs the Texas Juvenile Justice Department had to offer and that as of the date of the early transfer hearing, appellant had accumulated 6 more incidents, increasing his total to 98 incidents since the May 24, 2023 report recommending early transfer.
The underlying offense in appellant's plea deal involved appellant attempting to rob a man, stealing that man's gun, and biting him before running away. However, at his hearing, appellant testified that he was committed for something he did not do, despite pleading "true" to the offense when accepting the plea deal. Appellant also testified to having numerous referrals to the juvenile justice system, as well as probation violations. These included charges for (1) two unauthorized use of a motor vehicle, (2) burglary of a habitation, (3) criminal trespass, (4) criminal mischief with an amount of pecuniary loss $750 or more but less than $2,500, and (5) over 11 violations of court. Appellant testified that he had numerous violations while at the Texas Juvenile Justice Department despite understanding the rules and the consequences of not following them.
In his January 31, 2023 psychological report of appellant, Dr. Hamady indicated that appellant deflected responsibility for his committing offense. Dr. Hamady also found that appellant's reporting during the interview was incongruent with the information provided, and that appellant appeared to be providing a "potentially unrealistic positive image of his criminal history and behavioral issues."
Congruent with this assessment is the testimony of appellant during the early transfer hearing, wherein he testified that he was wrongly convicted, despite his admission of guilt in his plea deal agreement.
a. The abilities of the juvenile to contribute to society
Appellant stated that he utilizes coping strategies for his aggressive behavior that he learned at the Texas Juvenile Justice Department and that he believes the programs have helped him. Appellant testified on direct examination at the June 21, 2023 hearing:
Q. Okay. Have you learned coping -- as part of these programs, have you learned coping mechanisms that if somebody gets in your face, you know what to do?
A. Yes, sir.
Q. What?
A. Like the STOP skill is to: Stop; take a step back; observe; and proceed with the situation. You've got during [sic] skills, breathing skills, working-out/exercising skills to help you cope -- your anger and impulses.
Q. Does it work?
A. Yes, sir.
Q. Do you -- when you start to get angry, do you go through all of these items in your mind?
A. Yes, sir.
Q. Do you want to go back to the program?
A. Yes, sir.
Q. If you go back to the program, if - would you -- will you do better than you're doing right now?
A. Way better.
Q. And -- well, how?
A. I'm try -- I'm going to try as hard as I can, because I -- like, it's not even the fact that I don't want to go to TDCJ; but I want to be a better person for myself. Like, I don't have to keep going through these motions and have to change facilities and have to go to jail my whole life. It's just that I don't want to do that anymore.
Appellant made some progress toward his high school diploma; however, at the time of the hearing, he was still considered a sophomore with 12 credits. Appellant testified that he had made progress toward his GED, completing two of the four required examinations. His academic testing scores ranked him as having a second-grade ability in reading and a fourth-grade ability in math. He testified that he received a certification in construction.
In the following exchange at the June 21, 2023 hearing, the juvenile court explained directly to appellant its rationale for ordering his transfer to TDCJ:
THE COURT: . . . I see that I was the Judge that sentenced you to TJJD, right?
THE RESPONDENT: Yes, ma'am. ....
THE COURT: Do you remember me telling you that your behavior at TJJD would be the biggest factor that I would consider when it came to a transfer hearing?
THE RESPONDENT: Yes, ma'am.
THE COURT: Do you remember me telling you that?
THE RESPONDENT: (The Respondent moves head up and down.)
THE COURT: All right. Because I'm a person of my word and I told you that up-front, so I do not understand why you have all of these violations. If you took me seriously -- and I hope you took me seriously -- why you have all of these violations; and I really don't understand why you would continue to violate, knowing you were coming back to see me. I don't understand that. So here's my ruling -- well, before I give you the ruling, I'm going to give you some findings. ....
THE COURT: I find that the Respondent has not completed his sentence at this time -- or his minimum stay at this time at TJJD. I find that his conduct indicates that the welfare of the community requires that the Respondent be transferred to the Institutional Division of the Texas Department of Criminal Justice; and so I therefore order the transfer of the Respondent to the Institutional Division of TDC....
Despite the violent nature of appellant's aggravated assault with a deadly weapon offense, a factfinder could have weighed some evidence in favor of returning appellant to the Texas Juvenile Justice Department, such as appellant's asserted desire to improve his behavior and his statement that he wanted to be a better person. However, because of his pattern of aggressive criminal acts before committing that offense, his numerous behavioral incidents while at the Texas Juvenile Justice Department, his failures to change his behavioral pattern while knowing that a transfer to TDCJ was possible, his belief that he was wrongly convicted for the underlying offense, and the recommendation of the Texas Juvenile Justice Department that transfer was warranted, we cannot conclude that the trial court acted without guiding rules and principles by transferring appellant to TDCJ. See K.Y., 392 S.W.3d at 737; J.D.P., 149 S.W.3d at 792; see also Tex. Fam. Code Ann. § 54.11(k).
Appellant contends that that the trial court abused its discretion because he was participating in the programs at the Texas Juvenile Justice Department and maintaining a positive behavioral history. But "Texas courts have ... held that a trial court does not abuse its discretion in transferring a juvenile to TDCJ even when evidence suggests that the possibility of more specialized treatment would be obtained by a juvenile's return to the Texas Juvenile Justice Department." J.B.C., 2008 WL 4531701, at *3; see also J.R.W. v. State, 879 S.W.2d 254, 258 (Tex. App.-Dallas [5th Dist.] 1994, no writ) (upholding a trial court's transfer of a juvenile to TDCJ even though a state psychologist recommended that he be sent back for participation in a specialized program); In re C.D.R., 827 S.W.2d 589, 59293 (Tex. App.-Houston [1st Dist.] 1992, no writ) (rejecting a juvenile's claim that he should have been returned for a specialized sex offender program). We cannot conclude, as appellant argues, that appellant's participation in any of the programming was a prerequisite to his transfer to TDCJ. See J.B.C., 2008 WL 4531701, at *4 (affirming a juvenile's transfer to TDCJ even though one of the juvenile's case managers testified that the juvenile would benefit from specialized treatment in the juvenile system). The trial court could have reasonably found that appellant's success in the programs was unlikely given his numerous and continuous behavioral incidents while confined.
Considering all the evidence presented in the trial court, we cannot conclude that the court abused its discretion by granting the Texas Juvenile Justice Department's request to transfer appellant to TDCJ. See Tex. Fam. Code Ann. § 54.11(i)(2), (k); K.Y., 392 S.W.3d at 737. We overrule appellant's sole point on appeal.
Conclusion
Having overruled appellant's sole point, we affirm the trial court's order transferring appellant to TDCJ to serve the remainder of his sentence.