                           NUMBER 13-13-00353-CV

                             COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


                    IN THE MATTER OF J.M.S.M., A CHILD


  On appeal from the 357th District Court of Cameron County, Texas,
                     sitting as a Juvenile Court.


                           MEMORANDUM OPINION

             Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion by Justice Rodriguez
       The trial court ordered appellant J.M.S.M., a child, transferred from the Texas

Juvenile Justice Division (TJJD) to the Institutional Division of the Texas Department of

Criminal Justice (TDCJ) for the completion of his determinate sentence. See TEX. HUM.

RES. CODE ANN. § 244.014 (West, Westlaw through 2013 3d C.S.). By two issues,

J.M.S.M. contends that his sentence should be set aside because: (1) the trial court

allowed evidence in violation of his right of confrontation; and (2) he received ineffective

assistance of trial counsel. We affirm.
                                      I. BACKGROUND

A. Procedural History

       When he was sixteen years old, J.M.S.M. was adjudicated delinquent for the

offense of engaging in delinquent conduct, namely knowingly and intentionally

possessing, with intent to deliver, a controlled substance—cocaine in an amount by

aggregate weight including adulterants and dilutants, of more than 400 grams. See TEX.

HEALTH & SAFETY CODE ANN. § 481.112 (West, Westlaw through 2013 3d C.S.). The trial

court committed J.M.S.M. to the TJJD for a determinate sentence of eight years, subject

to transfer to the TDCJ for the completion of his determinate sentence. See TEX. FAM.

CODE ANN. § 53.045 (West, Westlaw through 2013 3d C.S.). Before J.M.S.M. reached

his nineteenth birthday, the State filed a motion seeking J.M.S.M.’s release from the TJJD

and transfer to the TDCJ.

B. The Transfer Hearing

       On May 23, 2013, the trial court, sitting as a juvenile court, held J.M.S.M.’s transfer

hearing.

       1. The State’s Witness and Exhibits

       The State called Leonard Cucolo as its witness. Cucolo testified that he was

employed by the TJJD as a court liaison and that his principal responsibility was to provide

the trial court with case files and summary reports on youths being considered for either

parole or prison. Regarding his report on J.M.S.M., Cucolo testified as to J.M.S.M.’s

age, the offense for which he was committed, when he was committed to TJJD, and the

sentence he received. Cucolo also discussed J.M.S.M.’s participation at the Orientation


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and Assessment Unit, his assessed needs, and where he was placed—the Evins

Regional Juvenile Center—to address those needs.       Regarding J.M.S.M.’s education,

Cucolo testified that J.M.S.M. received eleven of twenty-two credits necessary for a high

school diploma, performing inconsistently in his courses—doing well in some and failing

others. According to Cucolo, J.M.S.M. did not pass all subject areas when he tested for

a GED the preceding January. J.M.S.M. did complete the alcohol and drug treatment

program, a moderate level aggressive retraining program, and the gang intervention

curriculum. Cucolo then answered questions regarding the CoNextions Program, a five-

stage program that manages and evaluates a youth’s progress on a monthly cycle

throughout his stay. The stages of the program build on one another and have different

treatment objectives.    Cucolo explained that between July 2011 and October 2012,

J.M.S.M. advanced through the first three stages of the program.          J.M.S.M. was

promoted to stage four in October and had not yet been promoted to the final stage of the

program. According to his review of the records, Cucolo testified that J.M.S.M. was

retained at stage four every month for the past seven months because of “a variety of

inconsistent effort on [his] individual case plan, inconsistent effort in behavior, and

maintaining behavior.”

      Cucolo testified that J.M.S.M. had thirty-eight documented incidents of misconduct

since being committed to TJJD, thirty-five of which were security referrals (two self-

referrals) and seventeen of which resulted in actual placements in the security unit. He

explained that the majority of the incidents were for disruption of the program—for

example, not participating in the program or not following staff instructions.       But


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according to Cucolo, J.M.S.M. had a variety of major rule violations over time, including

tattooing, fleeing apprehension, vandalism, assaults, fighting, and threatening staff and

other youths.    Cucolo testified that J.M.S.M. “has been engaging in a lot of delinquent

conduct that he was engaging in prior to his commitment up until a couple of months ago,

even last month. So this has really kind of indicated to us that he is just not parole ready.”

       According to Cucolo, if a youth has engaged in three or more major rule violations,

an informal (level 2) hearing is held, and if those violations are found to be true, the youth

can be sanctioned. J.M.S.M.’s last level 2 hearing was in April 2013 and was for fighting.

Cucolo explained that this occurred after J.M.S.M. had completed the aggression

replacement therapy and the gang intervention curriculum. Cucolo continued,

              And with our criteria when we look at youth for return to court, if the
       youth has engaged in three or more major rule violations that’s been
       confirmed through a level 2 hearing, then they’re meeting the criteria for
       transfer. [J.M.S.M.] has five. He has multiple rule violations that he’s
       engaged in. And as a result of that, that’s pretty much why we’re kind of
       making the recommendation we are today.

       When asked what the TJJD was recommending for J.M.S.M., Cucolo responded

as follows:

               Well, we’re recommending that [J.M.S.M.] be transferred to the
       Institutional Division of the Texas Department of Criminal Justice for the
       remainder of his sentence . . . because of what we just talked about, that
       he’s not ready to be released to parole. He’s having difficulty—even up
       until now—following even the basic rules, following staff instructions. And
       that’s within a highly structured setting with staff providing the necessary
       supervision for him. He’s engaged in several new offenses while he’s been
       confined. He has had the benefit of multiple interventions. And they have
       not really impeded his behavior. And he has not reduced, we believe, his
       risk to the community if he is released.

       On cross-examination, Cucolo testified that J.M.S.M. did not have a relationship


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with his mother, who had returned to Mexico. He did not know about any relationship

J.M.S.M. had with his three older siblings or his father, who, according to defense counsel,

had died. And as summarized by J.M.S.M. on appeal, on cross-examination Cucolo also

testified as follows: (1) he was aware of J.M.S.M.’s previous delinquent history; (2) in

preparing his report, he reviewed written documentation submitted in March 2013 by

J.M.S.M.’s school, including, among others, psychological evaluations, behavior

summaries, and academic assessments by staff; (3) the referenced violations could be

considered misleading because they involved only one “probation”; and (4) in preparing

his report, he did not speak to J.M.S.M., his mother, case manager, teachers, or uncle.

Cucolo also explained that he had no personal knowledge of any of J.M.S.M.’s incidents

of misconduct and had to rely on the reports of other staff and that he could not identify

which events were assaults and which were fights. Cucolo also agreed that in the 700

days that J.M.S.M. had been at the TJJD, he only had thirty-eight incidents of

misbehavior.

       Without objection, the trial court admitted Cucolo’s April 22, 2013 report as State’s

Exhibit 1. Case Manager III Ismelda Huerta prepared a second report sometime after

April 2013. Huerta’s report summarized J.M.S.M.’s behavior over the preceding ninety

days. This second report provided information that was consistent with Exhibit 1 and

Cucolo’s testimony.    The trial court admitted Huerta’s behavior summary as State’s

Exhibit 2.



       2. J.M.S.M.’s Witnesses and Exhibits


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       J.M.S.M. called Esther Olivia Castillo and Alfredo Yanez to testify on his behalf.

Castillo, J.M.S.M.’s aunt, testified that she was willing to house and assist J.M.S.M. if

paroled. Yanez testified that he was prepared to offer J.M.S.M. a job. Through these

witnesses, the trial court admitted (1) two letters of reference from J.M.S.M.’s teachers;

(2) one letter of reference from a juvenile correction officer; (3) a participation ribbon in

volleyball; and (4) a ribbon and a certificate recognizing his participation in the Relay for

Life Run.

C. Transfer Order and Appeal

       At the conclusion of the hearing, the trial court ordered J.M.S.M. transferred to

TDCJ for completion of his original sentence.        See TEX. HUM. RES. CODE ANN. §§

244.014, 244.151(c) (West, Westlaw through 2013 3d C.S.); TEX. FAM. CODE ANN. §

54.11(i)(2) (West, Westlaw through 2013 3d C.S.).         J.M.S.M. appeals from the trial

court’s transfer order. See TEX. FAM. CODE ANN. § 56.01(c)(2) (West, Westlaw through

2013 3d C.S.).

                                 II. STANDARD OF REVIEW

       We review a trial court’s decision to transfer a juvenile from TJJD to TDCJ 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.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. In

re D.L., 198 S.W.3d at 229; In re J.L.C., 160 S.W.3d at 313. We do not substitute our

discretion and reverse only if the trial court acted in an unreasonable or arbitrary manner.


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In re T.D.H., 971 S.W.2d 606, 610 (Tex. App.—Dallas 1998, no pet.).

                              III. RIGHT OF CONFRONTATION

       By his first issue, J.M.S.M. contends that the trial court erred in allowing Cucolo to

testify to records that were testimonial in nature. He asserts “the State introduced this

evidence in violation of the Confrontation Clause” when Cucolo “testified to records

pertaining to conduct of [J.M.S.M.] to which he had no personal knowledge and was

testimonial in nature because it presented the impressions contained in the reports.” He

also complains of evidence of other crimes, wrongs, or acts by J.M.S.M. that the State

offered, apparently through Cucolo’s report or his testimony. Finally, J.M.S.M. asserts

that the evidence is barred by the hearsay rule.

       Section 54.11 of the Texas Family Code governs release or transfer proceedings

involving juveniles. See TEX. FAM. CODE ANN. § 54.11. And at a transfer hearing, “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.” Id. § 54.11(d); In re F.D., 245 S.W.3d 110, 113 (Tex. App.—Dallas 2008, no

pet.). The transfer hearing is a “second chance hearing” after a child, such as J.M.S.M.,

has already been sentenced to a determinate number of years. In re 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. (explaining that a juvenile has

no right of confrontation at a 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.).


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       The trial court considered the written report prepared by an employee of the TJJD

and heard Cucolo’s testimony. See TEX. FAM. CODE ANN. § 54.11(d); In re F.D., 245

S.W.3d at 113.      Cucolo testified at the transfer hearing.    He testified as a TJJD

employee and described himself as its court liaison who provides trial courts with case

files and summary reports on youths being considered for either parole or prison. Cucolo

answered questions about information that was contained in his written report. The trial

court also considered Huerta’s behavior summary, a second report that provided similar

information.

       Because the legislature has determined that such evidence may be considered in

transfer hearings, the trial court acted with reference to guiding principles or rules. See

In re D.L., 198 S.W.3d at 229; In re J.L.C., 160 S.W.3d at 313. Having reviewed the

entire record, we conclude the trial court did not abuse its discretion when it allowed

Cucolo to testify and when it admitted the reports. See In re S.M., 207 S.W.3d 421, 424–

25 (Tex. App.—Fort Worth 2006, pet. denied); In re D.L., 198 S.W.3d at 230. We

overrule J.M.S.M.'s first issue.

                        IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       In his second issue, J.M.S.M. argues that his trial counsel rendered ineffective

assistance because she “never properly objected to evidence being offered in violation of

the right to confrontation.” A juvenile has a constitutional and statutory right to the

effective assistance of counsel in a juvenile proceeding. See In re K.J.O., 27 S.W.3d

340, 342 (Tex. App.—Dallas 2000, pet. denied).          We review the effectiveness of

counsel's representation in a juvenile proceeding under Strickland v. Washington. 466


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U.S. 668, 687–88 (1984); see In re K.J.O., 27 S.W.3d at 342. J.M.S.M. must show his

counsel's performance was deficient and that the deficient performance prejudiced the

defense.    See Strickland, 466 U.S. at 687.            This means J.M.S.M. must show a

reasonable probability that, but for his counsel's unprofessional errors, the result of the

proceeding would have been different. See id.; see also In re R.D.B., 20 S.W.3d 255,

258 (Tex. App.—Texarkana 2000, no pet.).

       Because a juvenile has no right to confrontation at a transfer hearing, see In re

F.D., 245 S.W.3d at 113, he cannot show that counsel’s performance was deficient or

that, but for any deficient performance, the result of the proceeding would have been

different. See Strickland, 466 U.S. at 687; see also In re R.D.B., 20 S.W.3d at 258. We

overrule J.M.S.M.’s second issue.

                                      V. CONCLUSION

       We affirm the trial court’s order of transfer.


                                                                NELDA V. RODRIGUEZ
                                                                Justice

Delivered and filed the 2nd
day of October, 2014.




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