in the Matter of J.D. a Juvenile ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00112-CV
IN THE MATTER OF J.D., A JUVENILE,
From the 74th District Court
McLennan County, Texas
Trial Court No. 2010-316-J
MEMORANDUM OPINION
In one issue, appellant, J.D., argues that the trial court abused its discretion by
refusing to release him on parole and, instead, ordering his transfer from the Texas
Juvenile Justice Department (“TJJD”) to the Institutional Division of the Texas
Department of Criminal Justice (“TDCJ”).1 We affirm.2
1 Effective December 1, 2011, the Texas Youth Commission was renamed the Texas Juvenile
Justice Department. See TEX. HUM. RES. CODE ANN. § 201.001(a)(4), (b)(2) (West 2013). Accordingly,
throughout this opinion, the former Texas Youth Commission will be referred to as the Texas Juvenile
Justice Department or TJJD.
2 All pending motions are dismissed as moot.
I. BACKGROUND
In the instant case, appellant was adjudicated guilty of aggravated robbery and
received a determinate sentence of twenty-five years. The trial court rendered a
disposition order committing appellant to TJJD for the sentence. The record reflects that
appellant was a party—the getaway driver—to the offense. Specifically, appellant
drove three others to a convenience store in Bellmead, Texas, owned by Najamal Haq.
While appellant waited in the vehicle, the accomplices fatally stabbed Haq with knives.
After the commission of the offense, appellant drove the vehicle away from the scene.
According to Officer Haywood Sawyer of the Bellmead Police Department, one of the
accomplices, Mario Escobedo, has not been apprehended and is believed to have
absconded to Mexico. Charles Terrell, a McLennan County Juvenile Probation Officer,
testified that appellant is not a United State citizen and that, because of his conduct, the
United States Immigration and Customs Enforcement (“ICE”) placed a hold on him on
August 24, 2010. A subsequent notice dated April 1, 2013, extended the hold and stated
that appellant “is an alien subject to removal from the United States.”
In any event, because appellant was sixteen years old at the time of the hearing
on the State’s petition for determinate sentencing, it was not possible for appellant to
serve the required three-year minimum sentence in TJJD before his nineteenth birthday.
See Act of May 5, 2011, 82d Leg., R.S., ch. 85, § 1.007, 2011 Tex. Gen. Laws 366, 420
(codified as amended at TEX. HUM. RES. CODE ANN. § 245.051 (West 2013)) (amending
former TEX. HUM. RES. CODE ANN. § 61.081). Consequently, TJJD requested a hearing to
decide whether appellant should be released on adult probation or transferred to TDCJ
In the Matter of J.D. a Juvenile Page 2
to complete his twenty-five-year determinate sentence. TJJD also filed a report
recommending that appellant be released on adult probation. Because TJJD
recommended that appellant be released on parole, and because appellant did not serve
at least three years of his determinate sentence, the trial court was obligated to conduct
a transfer hearing. See TEX. HUM. RES. CODE ANN. § 245.051(c)(2); see also TEX. FAM. CODE
ANN. § 54.11(a) (West Supp. 2012).
At the hearing, several witnesses testified about whether appellant should be
released on parole or transferred from TJJD to TDCJ. At the conclusion of the evidence,
the trial court ordered that appellant be transferred from TJJD to TDCJ. In its transfer
order, the trial court noted that it considered the following, among other factors:
1. The experiences and character of the Respondent [appellant] before and after
commitment to the [TJJD];
2. The nature of the penal offense that the Respondent was found to have
committed and the manner in which the offense was committed;
3. The ability of Respondent to contribute to society;
4. The protection of the victim or any members of the victim’s family;
5. Recommendations of the youth commission and prosecuting attorney;
6. The best interests of Respondent; and
7. Any other factor relevant to this issue to be decided.
See TEX. FAM. CODE ANN. § 54.11(k). This appeal followed.
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II. STANDARD OF REVIEW AND APPLICABLE LAW
A trial court’s decision to transfer a juvenile from TJJD to TDCJ is reviewed for
an abuse of discretion. In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006,
pet. denied); In re J.D.P., 149 S.W.3d 790, 792 (Tex. App.—Fort Worth 2004, no pet.). In
determining whether the trial court abused its discretion, we review the entire record to
determine if the trial court acted arbitrarily, unreasonably, or without reference to any
guiding principles or rules. In re D.L., 198 S.W.3d at 229; see In re J.L.C., 160 S.W.3d 312,
313 (Tex. App.—Dallas 2005, no pet.). “The trial court’s decision will be upheld if the
record contains some evidence to support it.” In re N.K.M., 387 S.W.3d 859, 864 (Tex.
App.—San Antonio 2012, no pet.); see In re D.L., 198 S.W.3d at 229.
Prior to reaching the age of nineteen, a determination must be made whether a
juvenile serving a determinate sentence will be released under supervision or
transferred to the TDCJ to complete his sentence. See Act of May 5, 2011, 82d Leg., R.S.,
ch. 85, § 1.007, 2011 Tex. Gen. Laws 366, 420 (amended 2012). If the TJJD recommends
release of a juvenile who was sentenced for a felony of the first degree and who has not
served at least three years in the TJJD, the court must hold a hearing to determine
whether the juvenile should be released under supervision or transferred to the TDCJ.
TEX. HUM. RES. CODE ANN. § 245.051(c)(2); see TEX. FAM. CODE ANN. § 54.11(a). After
evidence has been presented and the hearing has concluded, the trial court may order:
(1) the return of the juvenile to TJJD with or without approval for release under
In the Matter of J.D. a Juvenile Page 4
supervision; or (2) the juvenile transferred to TDCJ to complete the imposed sentence.
TEX. FAM. CODE ANN. § 54.11(i)-(j).
When conducting a transfer hearing, a trial court may consider written reports
provided by “probation officers, professional court employees, professional consultants,
or employees of the [Texas Juvenile Justice Department],” as well as the testimony of
witnesses. Id. § 54.11(d). Additionally, when making a decision whether to approve the
TJJD’s recommendation for release under supervision, the trial court may take into
account,
the experiences and character of the person before and after commitment
to the [TJJD], 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] and prosecuting attorney, the best interests of the person,
and any other factor relevant to the issue to be decided.
Id. § 54.11(k). The trial court is not obliged to consider all of the factors listed, and it
may consider relevant factors not listed. In re N.K.M., 387 S.W.3d at 864; see In re J.J., 276
S.W.3d 171, 178 (Tex. App.—Austin 2008, pet. denied). Moreover, the trial court can
assign differing weights to the factors considered. In re N.K.M., 387 S.W.3d at 864; see In
re J.J., 276 S.W.3d at 178.
III. ANALYSIS
Here, the trial court heard eight different witnesses and was provided with
multiple reports and exhibits for consideration. Both favorable and unfavorable
evidence was presented. In particular, Leonard Cucolo, a TJJD Court Liaison, testified
and filed a report documenting his interactions with appellant. Cucolo recommended
In the Matter of J.D. a Juvenile Page 5
that appellant be released on parole for a variety of reasons, including appellant’s
juvenile record, psychological evaluations, academic progress, behavior in TJJD, and
treatment history. Cucolo noted that appellant accepted responsibility for his role in the
offense, participated in vocational training in the area of welding, and completed
several treatment programs. Cucolo testified that appellant’s behavior while at TJJD
was “excellent.” However, in response to further questioning, Cucolo noted that
appellant had two behavioral violations while at TJJD—one involving the possession of
a pen and gauze while he was in a tattoo-removal program and the other involving
appellant’s brother allegedly bringing appellant money in violation of the rules. Also,
Terrell acknowledged on cross-examination that appellant had engaged in good
behavior while at TJJD and that he was cooperative.
Dr. Enrique Covarrubias, a psychologist at the Giddings State School, opined
that, despite only treating appellant for two months, appellant is genuine and
believable and that he has no concerns about appellant being released on parole. Dr.
Covarrubias echoed Cucolo’s recommendation that appellant should be released on
parole. Dr. Kathryn Hallmark, another psychologist, testified that she also evaluated
appellant and determined that appellant should be released on parole so long as he
continues to receive counseling. Appellant’s mother and father also testified. They
both stated that appellant was respectful and that they did not know of appellant’s
involvement in the underlying offense until one of the accomplices was arrested and
appellant admitted his role in the offense. Appellant’s father stated that appellant is not
a violent person and that appellant has changed since entering TJJD.
In the Matter of J.D. a Juvenile Page 6
On the other hand, the State presented evidence, including surveillance footage,
depicting the gruesome nature of the offense. Officer Sawyer recalled that he
responded to the scene shortly after the incident occurred and observed that Haq was
bleeding profusely and
had three lacerations about one inch a piece in the abdominal area or in
the stomach area, also had a large laceration to his left arm. The laceration
to the left side of the body in the stomach area had about a quarter inch
intestine protrusion, his intestines was [sic] bulging out.
Terrell described the offense as “pretty severe,” and the record reflected that Haq died
as a result of the injuries sustained during the incident. Officer Sawyer further testified
that one of the accomplices told police that appellant was laughing after the incident
transpired.
Moreover, Dr. Hallmark recounted that appellant admitted that his involvement
in the robbery was not confined to being the getaway driver. In what appears to be an
attempt to conceal evidence, appellant told Dr. Hallmark that he instructed one of the
accomplices to get rid of the shirts they were wearing at the time of the incident. Dr.
Hallmark also acknowledged that she wrote the following in her report: “[Appellant’s]
avoidance of full disclosure of his substance abuse, criminal history[,] and committing
[this] offense is concerning.” Because of this, there was a delay in enrolling appellant in
treatment for capital offenders. Dr. Hallmark also wrote that:
had he [appellant] not been referred into higher intensity of treatment
programing, he would likely not have processed and disclosed fully.
While there is a possibility that he’s simply telling what he believes, he
must say, in order to receive a parole recommendation. His reasoning for
avoiding disclosure is not uncommon for juveniles in treatment.
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Dr. Hallmark later clarified that, after speaking with appellant for three hours, she did
not believe appellant to be deceitful, though “he minimized at times.”
Furthermore, appellant’s mother testified that, though appellant admitted his
involvement shortly after the incident, she learned new things about appellant’s
involvement in the robbery after appellant participated in counseling. This testimony
implies that appellant was not as forthcoming about his involvement in the robbery
initially. Finally, Haq’s son, Mohammad Hamza, expressed that Haq’s death had a
significant impact on him and his family. Hamza quit college to run his father’s
convenience store, and Haq’s wife became depressed after Haq’s death. Hamza also
stated that he has safety concerns if appellant was released on parole.
Clearly, the record contains conflicting evidence supporting appellant’s release
on parole and his possible transfer to TDCJ. It is well established that the trial court is
permitted to assign varying amounts of weight to the evidence, as well as believe or
disbelieve the witnesses’ testimony. See In re N.K.M., 387 S.W.3d at 864; State v. Ross, 32
S.W.3d 853, 854 (Tex. Crim. App. 2000) (explaining that the factfinder is the sole judge
of the credibility of the witnesses); see also In re L.C., No. 04-12-00326-CV, 2013 Tex. App.
LEXIS 4238, at *9 (Tex. App.—San Antonio Apr. 3, 2013, no pet.) (mem. op.).
Furthermore, the evidence presented touches on several of the factors articulated in
section 54.11(k) of the Texas Family Code. See TEX. FAM. CODE ANN. § 54.11(k).
Moreover, we note that the recommendations of Cucolo and Drs. Covarrubias and
Hallmark are but one factor in the number of factors that the trial court was empowered
to consider. See id.; see also In re N.K.M., 387 S.W.3d at 864; In re J.J., 276 S.W.3d at 178;
In the Matter of J.D. a Juvenile Page 8
K.L.M. v. State, 881 S.W.2d 80, 84-85 (Tex. App.—Dallas 1994, no pet.) (“Under section
54.11, the trial court does not have to follow the recommendations of state officials at
the [TJJD].”). In fact, among the factors the trial court could consider are the nature of
the offense and the protection of the victim or any member of the victim’s family—
factors in which the testimony adduced is uncontroverted. See TEX. FAM. CODE ANN. §
54.11(k). In addition, we emphasize that all inferences are taken in favor of the trial
court’s ruling, and the decision is to be upheld even if the appellate court would weigh
the factors differently. See In re N.K.M., 387 S.W.3d at 864; In re D.L., 198 S.W.3d at 229;
K.L.M., 881 S.W.2d 84. Therefore, based on the foregoing, we find that there is some
evidence in the record to support the trial court’s transfer order. See In re N.K.M., 387
S.W.3d at 864; In re D.L., 198 S.W.3d at 229; K.L.M., 881 S.W.2d 84. Accordingly, we
cannot say that the trial court abused its discretion in ordering appellant’s transfer from
TJJD to TDCJ to complete the remainder of his twenty-five-year determinate sentence.
See In re D.L., 198 S.W.3d at 229; In re J.D.P., 149 S.W.3d at 792. We overrule appellant’s
sole issue on appeal.
IV. CONCLUSION
Having overruled appellant’s sole issue on appeal, we affirm the judgment of the
trial court.
AL SCOGGINS
Justice
In the Matter of J.D. a Juvenile Page 9
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 26, 2013
[CV06]
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