in the Matter of C.E.F.W. ( 2009 )

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MEMORANDUM OPINION
No. 04-08-00854-CV
IN THE MATTER OF C.E.F.W.
From the 386th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-JUV-02056
Honorable Laura Parker, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: September 2, 2009
AFFIRMED
C.E.F.W., a juvenile, appeals the trial court’s order transferring him from the Texas Youth
Commission (TYC) to the Institutional Division of the Texas Department of Criminal Justice
(TDCJ) to serve the remainder of his forty-year determinate sentence. In his sole issue, C.E.F.W.
contends the trial court abused its discretion in ordering the transfer. We affirm the order of the trial
court.
BACKGROUND
At the age of thirteen, C.E.F.W. was charged with two counts of aggravated sexual assault
for the brutal beating and rape of a 62 year-old woman in an assisted living facility. The case was
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tried to a jury, who found that C.E.F.W. engaged in delinquent conduct and recommended that he
be committed to TYC for a determinate sentence of forty years. The trial court adjudicated C.E.F.W.
delinquent and ordered him committed to TYC for a determinate sentence of 40 years, with possible
transfer to TDCJ. The trial court subsequently conducted a hearing based on TYC’s request that
C.E.F.W. be transferred from TYC to TDCJ. At the hearing, TYC court liaison Leonard Cucolo
recommended that C.E.F.W. be transferred to TDCJ to complete the remainder of his 40-year
sentence. Cucolo testified that while C.E.F.W. was classified as a priority I sex offender, he failed
to enter the sex offender treatment program because his aggressive and disruptive behaviors
prevented him from qualifying for specialized treatment. During C.E.F.W.’s time at TYC, he had
331 documented incidents, 40 of which were in the more serious category I. While there were
periods during which C.E.F.W. was able to control his behavior, Cucolo testified that it was when
significant attempts were made to get C.E.F.W. to engage in treatment that his behavior became
especially disruptive. Cucolo also noted that C.E.F.W. was aware of the consequences of his refusal
to adjust his behavior and participate in his treatment program, including the possibility of transfer.
Further, C.E.F.W. often refused to attend individual and group therapy sessions, which prevented
him from progressing in correctional therapy. Finally, Cucolo testified that if C.E.F.W were to be
returned to TYC, he would be returned to the Giddings State School, where he would participate in
basically the same treatment he had already been offered.
TYC psychologist Dr. Bradley Norlander also testified at the transfer hearing. He stated that
although the TYC Special Services Committee initially recommended that C.E.F.W. be transferred
to TDCJ, he recommended that C.E.F.W. be given a second chance. TYC then assigned C.E.F.W.
a new case manager, moved him into a new dorm, and adjusted his medication. However, C.E.F.W.
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failed to make sufficient progress in his treatment and continued to have serious behavior problems,
including gang-related incidents and dangerous behavior toward others. He often slept in class and
required frequent interventions from staff in attempts to persuade him to do his work. Further,
C.E.F.W. refused to talk about personal issues or participate in therapy, including both group and
individual therapy, preventing him from making progress in the correctional therapy program. Dr.
Norlander subsequently re-evaluated C.E.F.W. and recommended that he be transferred to TDCJ.
Dr. Nicholas Carrasco, a private-practice psychologist who evaluated C.E.F.W. and did
contract work for TYC, testified on C.E.F.W.’s behalf. Dr. Carrasco stated that TYC’s failure to
treat C.E.F.W. for his anger issues is what prevented C.E.F.W. from qualifying for the sex offender
treatment program. Dr. Carrasco further opined that C.E.F.W. is at high risk to assault someone in
the near future. He stated the chances of C.E.F.W. getting the treatment he needed in TDCJ were
slim given that there are 30,000 sex offenders in the State prison and 600 slots for treatment.
Without such treatment, Dr. Carrasco believed C.E.F.W. posed a high risk to the community upon
his eventual release from prison. Dr. Carrasco recommended that the trial court deny the request to
transfer C.E.F.W. to the adult prison system.
At the conclusion of the hearing, the trial court ordered that C.E.F.W. be transferred to TDCJ
to complete the remainder of his 40-year sentence. On appeal, C.E.F.W. argues that the trial court
abused its discretion in transferring him from TYC to TDCJ because the resources available in TYC
to rehabilitate him are not available in TDCJ, and should he be transferred to TDCJ without proper
rehabilitation, he will be a risk to society upon his eventual release.
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DISCUSSION
We review a trial court’s decision to transfer a juvenile from TYC to TDCJ under an abuse
of discretion standard. In re J.M.O., 980 S.W.2d 811, 812-13 (Tex. App.—San Antonio 1998, pet.
denied). The appellate court must review the “entire record to determine if the trial court acted
without reference to any guiding rules and in an arbitrary manner.” Id. at 813. As long as “some
evidence exists to support the trial court’s decision,” there is no abuse of discretion. Id.; In re R.G.,
994 S.W.2d 309, 312 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). The appellate court may
not reverse the trial court’s decision for abuse of discretion simply because it disagrees with the
decision. In re R.G., 994 S.W.2d at 312.
In determining whether a juvenile should be transferred from TYC to TDCJ, the trial court
may consider the following factors:
the experiences and character of the person before and after commitment to the youth
commission, the nature of the penal offense the person was found to have committed and the
manner in which the offense was committed, the abilities of the person to contribute to
society, the protection of the victim of the offense or any member of the victim’s family, the
recommendations of the youth commission and prosecuting attorney, the best interests of the
person, and any other factor relevant to the issue to be decided.
TEX . FAM . CODE ANN . § 54.11(k) (Vernon 2008). The trial court need not consider every factor, and
evidence of each factor is not required. In re J.L.C., 160 S.W.3d 312, 313-14 (Tex. App.—Dallas
2005, no pet.); In re R.G., 994 S.W.2d at 312. Additionally, the trial court may assign different
weights to the factors that it considers, and it may consider other relevant factors not listed in the
statute. In re J.L.C., 160 S.W.3d at 314; In re R.G., 994 S.W.2d at 312. As long as the trial court’s
decision in consideration of these factors is within its discretionary authority, there is no abuse of
discretion. In re R.G., 994 S.W.2d at 312.
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C.E.F.W. contends that the trial court abused its discretion in failing to consider one of the
explicit factors listed in section 54.11(k): “the abilities of the person to contribute to society.” TEX .
FAM . CODE ANN . § 54.11(k). He argues that by implication this factor includes the risk the person
poses to society upon his release. C.E.F.W. maintains that the reason he was unable to reach
threshold levels in academics, behavior, and correctional therapy is because TYC never properly
addressed his issues with anger through an anger management program. He contends that his
inability to control his anger greatly contributed to his behavior problems, which prevented him from
progressing in the resocialization program, which in turn prevented him from entering the sex
offender treatment program. He further contends that without this specialized treatment, he will be
a danger to society upon his release. Thus, C.E.F.W. argues that he should have been remanded back
to TYC for proper anger management therapy, so that he may achieve threshold levels for entering
sex offender treatment.
We disagree with C.E.F.W.’s contention that because he would benefit from more
rehabilitative treatment, the trial court should have denied the transfer request. Under section 54.11,
the trial court has no duty to ascertain that TYC has adequately attempted to rehabilitate the juvenile,
but only determines whether to transfer the juvenile to TDCJ, release him under supervision,
discharge him, or recommit him to TYC. TEX . FAM . CODE ANN . § 54.11 (Vernon 2008); In re
J.R.W., 879 S.W.2d 254, 258 (Tex. App.—Dallas 1994, no writ). Based on this record, we cannot
conclude the trial court abused its discretion in ordering that C.E.F.W. be transferred to TDCJ. The
underlying offense for which C.E.F.W. was adjudicated delinquent was particularly egregious and
extremely violent. C.E.F.W. also had a prior juvenile record of offenses, including misdemeanor
assault and contempt of court cases. Additionally, the record indicates that C.E.F.W. continued a
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pattern of disruptive and aggressive behavior while at TYC, despite TYC’s efforts to assist him in
controlling and adjusting his behavior. Testimony at the transfer hearing indicates that C.E.F.W. was
informed that transfer to TDCJ was a consequence of continuing his disruptive behavior, and he was
even given a second chance to respond to treatment programs before a transfer request was made by
TYC. C.E.F.W. made no additional progress after being given this second chance, and the evidence
indicates that were he to be returned to TYC, his treatment program would not substantially change.
After reviewing the record in light of the factors set forth in section 54.11(k) of the Family
Code, there is clearly some evidence to support the transfer. See In re R.G., 994 S.W.2d at 312-13.
The trial court stated that its decision was based primarily on “the serious and egregious nature of
his committing offense and the fact that he has failed to follow the rules at TYC while knowing what
the consequences were . . . and that he has failed to engage in treatment having been offered the
opportunity numerous times.” There is ample evidence in the record to support this reasoning.
Therefore, the trial court did not abuse its discretion in ordering that C.E.F.W. be transferred to
TDCJ for the remainder of his sentence. See In re J.M.O., 980 S.W.2d at 813. C.E.F.W.’s sole issue
on appeal is overruled, and the order of the trial court is affirmed.
Phylis J. Speedlin, Justice
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