Opinion
No. 04-07-00478-CV
Delivered and Filed: May 28, 2008.
Appealed from the 289th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-JUV-00037, Honorable Carmen Kelsey, Judge Presiding.
AFFIRMED.
Sitting: ALMA L. LÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
N.S. appeals the trial court's order transferring him from the Texas Youth Commission to the Texas Department of Criminal Justice — Institutional Division. We affirm the trial court's judgment.
Factual and Procedural Background
In November 2002, N.S.'s three-month-old son died from injuries caused by blunt trauma to the head. The State filed a petition alleging N.S., who was sixteen at the time, committed murder in violation of section 19.02(b)(2) of the Texas Penal Code. Pursuant to a plea bargain agreement, the trial court adjudicated N.S. and committed him to the Texas Youth Commission ("TYC") to serve a forty-year determinate sentence. In January 2007, when N.S. was 20 years old, the TYC recommended N.S. be transferred to the Texas Department of Criminal Justice ("TDCJ") to complete his sentence.
At the transfer hearing, the trial court considered the evidence in the plea papers and the TYC's master and security files on N.S. The court also heard testimony from Leonard Cucolo, the TYC Court Liaison, and reviewed Cucolo's summary report, which was prepared from the TYC master file, the TYC security file, N.S.'s behavior summaries, and a psychological evaluation prepared for the transfer hearing. N.S.'s father also testified.
The stipulated evidence filed when N.S. was adjudicated reflects that three-month-old N.S., Jr. was taken to the hospital in critical condition on the evening of November 23, 2002. The baby had three bruises on the right side of his head, a skull fracture, a bruise on his forehead above his left eye, and larger bruises on both sides of his jaw. He was unable to breathe on his own and was placed on life support, but later died. The autopsy report concluded N.S., Jr.: "died as a result of acute craniocerebral injuries and blunt force trauma to the head. These injuries are not consistent with a fall. There were additional findings of previous injury to the child, consisting of multiple healing rib fractures on the right and left, and a healing clavicle fracture on the right."
In his statement to police, N.S. said he had been living at his sister's house with his girlfriend and the baby. That evening, the baby started to cry after his girlfriend and sister went to the store. N.S. rocked the baby, but when he continued crying, N.S. "got pissed off" and "tossed him on the ground." The baby's head hit the floor. N.S. tried to give the baby his pacifier, but he was moving his head around so N.S. "grabbed him by the neck to hold his head still." According to N.S., "he got bruises on his throat from me squeezing him too hard." The baby started moaning and N.S. thought he was going to sleep. When the moaning stopped, N.S. checked on the baby and found he was limp and having trouble breathing. At that time his sister arrived home and called 911.
It appears from the record that the State originally considered charging N.S. with capital murder. However, the petition and the grand jury's certificate of approval both alleged the offense of murder by injury, and N.S. judicially confessed to the allegation in the petition. In the course of the transfer hearing, it was discovered that the 2003 adjudication and disposition orders incorrectly recited N.S.'s offense as capital murder instead of murder, and the TYC records reflect the offense of capital murder. The trial court subsequently issued nunc pro tunc adjudication and disposition orders accurately reflecting the offense as murder.
Mr. Cucolo testified at the transfer hearing that it was his and the TYC's recommendation that N.S. be transferred to the TDCJ to complete his forty-year sentence. The recommendation was based on numerous incidents of misconduct in the nearly four years N.S. had been in TYC, his failure during the course of his therapy to accept responsibility for the death of his child, and the psychologist's finding that N.S. was a high risk for recidivism. Additionally, Mr. Cucolo testified that to be considered for release, a juvenile must be in Phase 4 in academics, behavior, and correctional therapy. Mr. Cucolo testified N.S.'s most recent phase assessment in January 2007 placed him in Phase 4 in behavior, but only in Phase 2 for academics and correctional therapy. Mr. Cucolo concluded that this shows N.S. "has not made the progress necessary to reduce the risk factors to be considered for release."
Mr. Cucolo's summary report states N.S. was initially placed in the Capital and Serious Violent Offender Treatment Program (CSVOTP), a specialized treatment program for violent offenders. However, he was discharged unsuccessfully from the program because of his failure to accept responsibility for the death of his son. While in the program, N.S. exhibited poor performance in treatment, poor overall behavior, low motivation, and lack of participation. N.S. participated in weekly group counseling sessions while at TYC and individual counseling with professional staff as needed. Nevertheless, he was not assessed at higher than Phase 2 in correctional therapy.
The section of Mr. Cucolo's report on behavior states N.S. was involved in ninety-eight documented incidents of misconduct during his forty-five months at TYC, seven of which required placement in a security unit. Two of the incidents were the subject of "Level II hearings." The first, in October 2003, was a fight with another juvenile. This incident resulted in a "two phase level reduction in Behavior." Then, in October 2004, N.S. participated in major planned disruption when he and thirty or more other students attempted to escape. This second incident resulted in N.S. receiving a "three phase level demotion in Behavior." Mr. Cucolo testified that many of the ninety-eight incidents were "trivial," and the report states that N.S. has been able to achieve Phase 4 in behavior and sustain it for several months at a time. However, according to Mr. Cucolo's report, N.S.'s behavior is inconsistent and his periods of good behavior are interrupted by serious problems, which indicates a failure to internalize changes. At the time of the hearing, N.S. was assessed at Phase 4 in behavior.
Thomas Talbot, an Associate Psychologist at the Giddings State School, conducted a psychological evaluation three months before the transfer hearing. Mr. Talbot reported that N.S. downplayed his actions towards his son and, notwithstanding multiple opportunities to take responsibility for his actions, only recently acknowledged that he threw his son to the ground. He also reported that N.S. has enabled his mother's belief that the child's mother was responsible for the injuries, and continues to allow his family to believe he did not kill his son. Mr. Talbot's current assessment states N.S.: "minimizes prior abuse to his son and his abusive relationship with the mother of his son. Additionally he minimizes his aggressive/assaultive actions for his committing offense. He appears to avoid and minimize the emotional affect [sic] of his actions on others." Mr. Talbot noted N.S. does not appear to suffer from any debilitating mental condition that might explain his lack of progress in correctional therapy and residential expectations.
Mr. Talbot also found N.S. has a number of factors that increase his risk for recidivism, including early exposure to violence and substance abuse, poor parental supervision and lack of parental attachment, parental physical abuse, history of substance abuse, history of poor school adjustment, history of violent offenses, gang affiliation, and history of assault while in TYC . He recommended transfer to Texas Department of Criminal Justice — Institutional Division.
The summary report states N.S. has made good academic progress while in TYC, earning a GED and completing two programs designed to prepare youth to reintegrate into the community. The report states N.S. was assessed in Phase 4 for academics, contradicting Mr. Cucolo's testimony that N.S. had achieved only Phase 2.
N.S.'s father, Mr. Paul Gomez, testified he is a carpenter living in Grand Forks, North Dakota. He stated that if N.S. were released on supervision, N.S. could live with him and work with him to learn carpentry as a trade. He testified he would help NS meet all his parole conditions.
At the conclusion of the hearing, the trial court ruled it was ordering N.S. transferred to the TDCJ — Institutional Division. The judge stated she considered all the evidence in making her decision, but gave particular emphasis to the nature of the offense and the manner in which it was committed, the evidence that N.S. had not given his best effort to follow the TYC rules and to rehabilitate himself, and N.S.'s participation in the disturbance and attempted escape at TYC. N.S. timely appealed.
Applicable Law and Standard of Review
After a juvenile serving a determinate sentence in TYC turns sixteen years of age, the TYC may recommend to the juvenile court that the child be transferred to the TDCJ to complete his sentence if "the child's conduct . . . indicates that the welfare of the community requires the transfer." Tex. Hum. Res. Code Ann. § 61.079(a) (Vernon Supp. 2007). The juvenile court must conduct a hearing and decide whether to transfer the juvenile to the TDCJ or return him to TYC. Tex. Fam. Code Ann. § 54.11(i) (Vernon Supp. 2007).
In making its determination, the juvenile court may consider the experiences and character of the juvenile before and after his commitment to TYC, the nature of the offense and the manner in which it was committed, the juvenile's ability to contribute to society, the protection of the victim and the victim's family, the recommendations of the TYC and the prosecutor, the best interests of the juvenile, and any other relevant factor. Id. § 54.11(k). The court may consider the written reports of TYC employees and professional consultants as well as hear live testimony. Id. § 54.11(d).
The juvenile may appeal an order transferring him from the TYC to the TDCJ. Id. § 56.01(c)(2) (Vernon 2002). We review the trial court's decision for abuse of discretion. In re D.L., 198 S.W.3d 228, 229 (Tex.App.-San Antonio 2006, pet. denied). We review the entire record and will reverse only if the trial court acted without reference to guiding rules and principles and there is no evidence supporting the court's decision. Id.
Discussion
N.S. argues the trial court abused its discretion in ordering the transfer because, according to N.S., the TYC's recommendation was based on the erroneous assumption he was adjudicated for capital murder. N.S. contends he should not have been placed in the CSVOT program and therefore the trial court should not have considered his failure to successfully complete that program. He also contends the trial court should not have considered Mr. Cucolo's recommendation, which was "based in large part on N.S.'s failure to accept responsibility for a crime for which he was never charged or adjudicated." We disagree with his arguments.
Upon admission to TYC, all youth are clinically assessed to determine their treatment needs. 37 Tex. Admin. Code § 85.51(15). They are prioritized for treatment based on offense, diagnosis, and/or risk. Id. Youth with the greatest need are placed in a specialized treatment program, one of which is the Capital and Serious Violent Offender Treatment Program. Id.; see also id. § 87.51. In order to be recommended for release, the program must be successfully completed. Id. §§ 85.51(15), 85.61(d)(1)(E). The program is not limited to capital offenders and nothing in the record suggests N.S. would not have been placed in the program had the original court papers accurately identified the offense as murder. It is also clear from Mr. Cucolo's report that N.S. did not fail the program because he refused to admit he committed capital murder, but rather because "he struggled . . . with accepting responsibility for the death of his son." N.S. argues TYC staff "must have treated N.S. differently than they would have had they known the truth." However, there is nothing in the record to support this argument.
Defense counsel argued at the transfer hearing that the TYC recommendation was tainted by the error in the original commitment papers. The trial court recognized the error before ruling on the transfer and clearly did not consider N.S. a capital offender when she made her ruling. The court considered relevant factors and articulated reasons for her decision, all of which are supported by the record. Accordingly, the court did not abuse its discretion in ordering N.S. transferred to the Texas Department of Criminal Justice — Institutional Division.
The trial court's order is affirmed.