in the Matter of D.V.W. ( 2015 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00054-CV
IN THE MATTER OF D.V.W.
On Appeal from the County Court at Law No. 1
Hunt County, Texas
Trial Court No. J-01902
Before Morriss, C.J., Moseley and Carter*, JJ.
Memorandum Opinion by Chief Justice Morriss
_______________________________
*Jack Carter, Justice, Retired, Sitting by Assignment
MEMORANDUM OPINION
D.V.W., previously adjudicated for aggravated assault, had his community supervision
revoked, received a determinate sentence of three years, and was committed to the Texas
Juvenile Justice Department (TJJD) February 5, 2013. Because D.V.W. will not complete the
statutory minimum period of confinement for his offenses before turning eighteen years of age, a
hearing was conducted to determine whether he should be released on parole or finish serving his
sentence as an adult. More formally, the trial court’s choice was between supervision by the
Texas Department of Criminal Justice–Parole Division (Parole Division) or custody in the Texas
Department of Criminal Justice–Institutions Division (Institutions Division). 1 After the hearing,
the trial court ordered D.V.W. transferred to the Institutions Division.
On appeal, D.V.W. contends that the trial court abused its discretion in transferring him
to the Institutions Division rather than the Parole Division. Because evidence supports the trial
court’s order of transfer, we affirm.
D.V.W. argues that the record establishes that he should have been placed on parole with
conditions.
We review for an abuse of discretion a trial court’s decision to transfer a juvenile from
the TJJD to the TDCJ. In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006, pet.
denied); In re J.L.C., 160 S.W.3d 312, 313 (Tex. App.—Dallas 2005, no pet.). In determining
whether the trial court abused its discretion, we review the entire record to determine if the trial
court acted without reference to any guiding principles or rules. D.L., 198 S.W.3d at 229; J.L.C.,
1
See TEX. FAM. CODE ANN. § 54.11 (West 2014); TEX. RES. CODE ANN. § 244.014 (West Supp. 2014), § 245.051
(West 2013).
2
160 S.W.3d at 313. We do not substitute our opinion for the trial court’s discretion and reverse
only if the trial court acted in an unreasonable or arbitrary manner. In re T.D.H., 971 S.W.2d
606, 610 (Tex. App.—Dallas 1998, no pet.).
Section 54.11 of the Texas Family Code governs release or transfer proceedings
involving juveniles. See TEX. FAM. CODE ANN. § 54.11. In determining whether the youthful
offender should be released on parole or transferred to the Institutions Division, the trial court
may consider
the experiences and character of the person before and after commitment to the
[TJJD] or post-adjudication secure correctional facility, the nature of the penal
offense that 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 [TJJD], county juvenile board, local juvenile probation
department, 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). Evidence of each factor is not required, and the trial court
need not consider every factor in making its decision. In re R.G., 994 S.W.2d 309, 312 (Tex.
App.—Houston [1st Dist.] 1999, pet. denied). In making its determination, “the court may
consider written reports from probation officers, professional court employees, professional
consultants, or employees of the [TJJD], in addition to the testimony of witnesses.” TEX. FAM.
CODE ANN. § 54.11(d); In re F.D., 245 S.W.3d 110, 113 (Tex. App.—Dallas 2008, no pet.). At
the conclusion of the hearing, the trial court may order the person back to the TJJD, released
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under parole supervision, or order the person transferred to the Institutions Division for the
completion of his sentence. 2 TEX. FAM. CODE. ANN. § 54.11(i), (j).
At the hearing, Leonard Cucolo, court liason for the TJJD, testified for the State, and
Cucolo’s report was admitted into evidence. Cucolo testified that D.V.W. does not have any
mental health issues that would interfere with his ability to fully participate in the TJJD program.
According to Cucolo, D.V.W. has all the abilities needed to succeed. D.V.W. completed the
required alcohol and drug treatment programs. D.V.W., however, was unable to complete the
“Serious Violent Offender Treatment Program” because he was removed from the group due to
poor behavior and poor participation. Cucolo noted, “[T]o be fair[,] . . . once he was removed
there was little time for him to be able to reenter the group, because it’s a closed group, and
another group wouldn’t have started. And even if it did start, he wouldn’t have enough time to
complete it.”
Cucolo’s report includes an evaluation of D.V.W. by Dewayne K. Jones, M.A., a
psychologist. In the report, Jones stated that D.V.W.’s profile indicates that he has “an increased
probably of delinquent, externalizing, and aggressive behaviors,” but, ultimately, Jones
recommended that D.V.W. be released to parole rather than Institutions Division. 3 D.V.W.
2
The transfer hearing is a “second chance hearing” after a child, such as D.V.W., has already been sentenced to a
determinate number of years. See F.D., 245 S.W.2d at 113. It is not part of the guilt/innocence determination and
need not meet the extensive due process requirements of an actual trial. Id. (juvenile has no right of confrontation at
transfer hearing because it is dispositional rather than adjudicative in nature); In re D.S., 921 S.W.2d 383, 387 (Tex.
App.—Corpus Christi 1996, writ dism’d w.o.j.).
3
Jones noted that, if D.V.W. were transferred to the Institutions Division, “he would be exposed to individuals who
would likely reinforce his tendency to use thinking errors to justify criminal behavior but more importantly he would
not likely receive any time on parole to supervise his transition to the community.”
4
performed “exceptionally well” academically while at the TJJD, has a high school diploma,
completed college-level classes, and obtained two vocational certifications.
Cucolo also testified that D.V.W. had serious behavioral issues. He had fifty-three
documented incidents of misconduct, for which he was “placed in the security unit on 24
occasions.” 4 The report noted that seven of the incidents were for horseplay, four were for
threatening others, two were for assault, and one was for fighting. Cucolo was concerned
because, despite being in the program for fourteen or fifteen months, D.V.W. consistently had
behavioral problems and made poor decisions, but his behavior began to improve the month
before the hearing. D.V.W. was “still struggling with maintaining good, stable behavior while
he was still confined,” and that made Cucolo question D.V.W.’s ability to “make it on parole.”
However, based on an objective review of D.V.W.’s case, every member of the special services
committee, the body making the TJJD’s recommendation, agreed that D.V.W. should be released
on parole because “his risk factors can be managed in the community.”
Ultimately, the trial court ordered D.V.W. transferred to the TDCJ-ID to continue serving
his sentence. There is evidence in the record to support the court’s decision: (a) D.V.W.
continued to have behavioral problems while in TJJD’s custody; (b) the prosecuting attorney
recommended transfer to TDCJ-ID; and (c) the underlying offense was violent. See TEX. FAM.
CODE ANN. § 54.11(k). As there is “some evidence” in the record to support the trial court’s
decision, there is no abuse of discretion. See D.L., 198 S.W.3d at 229. Accordingly, we overrule
this point of error.
4
The report noted that one incident was “a self-referral and not considered behavioral in nature.”
5
We affirm the trial court’s order transferring D.V.W. to the TDCJ-ID.
Josh R. Morriss, III
Chief Justice
Date Submitted: January 8, 2015
Date Decided: January 14, 2015
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