                                  NO. 12-12-00264-CV

                        IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

                                                §           APPEAL FROM THE
IN THE MATTER OF S.M.,
                                                §           COUNTY COURT AT LAW #3
A JUVENILE
                                                §            SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       S.M., a juvenile, appeals from a juvenile court order requiring him to register as a sex
offender in a public database. In his sole issue, he contends that the trial court abused its
discretion when it ordered that he register publicly as a sex offender. We affirm.


                                         BACKGROUND
       In January 2011, S.M.’s elementary age niece made an outcry that S.M. sexually abused
her. As that allegation was being investigated, S.M. essentially conceded to law enforcement
that he had committed the offense of aggravated sexual assault. Evidence of other related crimes
also surfaced. Based on this evidence, the State filed a petition alleging that S.M. engaged in
delinquent conduct, and he was charged as a juvenile with that offense. The State then sought
and obtained grand jury approval to seek a determinate sentence. An agreement was reached
whereby S.M. pleaded “true” to the allegations in exchange for an assessment of a determinate
sentence of confinement in the Texas Youth Commission (TYC) for twenty years.
       However, the issue of whether S.M. would be required to register as a sex offender
remained contested. S.M. asked that the court defer registration, while the State argued that such
a requirement should be immediately imposed. After a hearing, the trial court ordered that S.M.
register as a sex offender in a public database. A motion for new trial was filed and overruled.
This appeal followed.
                                       SEX OFFENDER REGISTRATION
       In his sole issue, S.M. contends that the trial court abused its discretion when it ordered
that he register publicly as a sex offender because “there was no evidence to rebut the conclusion
that the interest of the public and [S.M.] were best served by deferring registration.”
Standard of Review
       “The standard of review in the appellate court is whether the juvenile court committed
procedural error or abused its discretion in requiring registration.” TEX. CODE CRIM. PROC. ANN.
art. 62.357(b) (West 2006). In reviewing the order to register in this case, we engage in a two-
pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its
discretion, and (2) did the trial court err in its application of discretion? See In the Matter of
M.A.C., 999 S.W.2d 442, 446 (Tex. App.—El Paso 1999, no pet.).
       The traditional sufficiency of the evidence standards apply to the first question. Id. Once
it has been determined that sufficient evidence exists to support the finding, the appellate court
must then decide whether the juvenile court abused its discretion. Id. A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner, without reference to guiding rules or
principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). This court cannot
substitute its own judgment for that of the trial court in matters within its discretion. Id. This
means that the court must examine the evidence in the light most favorable to the trial court’s
disposition. Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008).
Applicable Law
       Generally, a person convicted of, or a child adjudicated as a delinquent for, a serious
sexual offense is required to register with the law enforcement authority in the community where
the person lives. See TEX. CODE CRIM. PROC. ANN. arts. 62.001(5)(A), 62.051(a) (West Supp.
2012). For a child adjudicated as a delinquent, the juvenile court may leave the registration
requirement in place, exempt the respondent from registration, or defer a decision as to whether
registration is required while the juvenile participates in a sex offender treatment program. See
id. art. 62.352(a), (b) (West 2006).
       When the juvenile seeks a deferral of the registration requirement, he has the burden of
persuasion at the hearing. Id. art. 62.351(b) (West 2006). To obtain an exemption, the juvenile
must show by a preponderance of the evidence

       (1) that the protection of the public would not be increased by registration . . .; or



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       (2) that any potential increase in protection of the public resulting from registration . . . is clearly
       outweighed by the anticipated substantial harm to the respondent . . . .


See id. art. 62.352(a); In re C.G.M., No. 11-12-00031-CV, 2012 WL 2988818, at *3 (Tex.
App.—Eastland July 19, 2012, no pet.) (mem. op.); In re J.D.G., 141 S.W.3d 319, 322 (Tex.
App.—Corpus Christi 2004, no pet.). In reaching a decision regarding the sexual offender
registration option, the juvenile court is authorized under the law to consider (1) the receipt of
exhibits, (2) the testimony of witnesses, (3) representations of counsel for the parties, or (4) the
contents of a social history report prepared by the juvenile probation department that may
include the results of testing and examination of the respondent by a psychologist, psychiatrist,
or counselor. TEX. CODE CRIM. PROC. ANN. art. 62.351(b).
Discussion
       It is undisputed that there was no procedural error in this case. Rather, S.M. argues that
the trial court abused its discretion when it denied his request to defer registration because (1)
there was no evidence before the trial court regarding S.M.’s risk to reoffend, (2) there was no
evidence that sex offender treatment would be unsuccessful, and (3) the public’s immediate
safety interest was protected while attempts to rehabilitate S.M. were made during his period of
confinement. We disagree.
       At the hearing, S.M.’s mother was the sole witness to testify. However, the “Pre-
Disposition Report” was also admitted into evidence. The evidence from that report shows that
S.M. admitted molesting his young niece by putting his sexual organ in her mouth. S.M. blamed
his niece’s alleged sexual advances for his actions. S.M. admitted further that his grandmother
observed that he had no pants on with an erect sexual organ while allegedly changing an infant
relative’s dirty diaper as the infant sat on his lap. S.M. also admitted that he had an ongoing
sexual relationship with a mentally challenged eighteen year old female who also resided in the
home where he lived. Reports from sources other than S.M. indicated that he might have
engaged in sexual misconduct with other young children, including his young male nephew, and
that S.M. himself may have been sexually abused.
       The report also showed that S.M. claimed to be a member of a criminal street gang, and
school records show that S.M. has a long history of being physically aggressive and disrespectful
to teachers, staff, and fellow students. For example, he threatened to commit a shooting at



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school and to “go to jail for murder.” The counselor preparing the report noted that S.M. had
significant mental illness, that “his behavior has escalated from Oppositional Defiant Disorder to
Conduct Disorder,” and that he has “clearly been out of control and presented a danger to
others.” The counselor went on to conclude that

       [S.M.’s] treatment in a controlled environment will need to be for an extended period of time,
       perhaps as much as two years. The Conduct Disordered type of behaviors will disrupt progress in
       treatment and make it difficult to deal with issues of trauma or sexualization. It is not possible to
       project how he will respond to treatment at this point, but I feel that a guarded prognosis may be
       overly optimistic.

Moreover, the record shows that while awaiting trial in confinement, S.M. continued his
aggressive and assaultive behavior against detention center staff and his peers. After the parties
made their closing arguments, the juvenile court concluded as follows:

       Well, this is one of those cases, and I don’t see that many of them, where someone of [S.M.’s] age
       is showing I guess what you could call predatory behavior. And that being the case[,] and based
       on what I’ve read today[,] I’m going to go ahead and order registration[,] and I’m going to order it
       be public as well. When he finishes his minimum stay at TYC he’ll be 17 or older. So when he’s
       released he’ll be an adult person. It won’t be like you’ve got a 14 year old out there living next
       door or in the neighborhood with somebody who’s being registered. He’ll be 17 or older. So
       that’s what the Court’s going to do is order a public registration on this one.

Based on the record, and given the counselor’s conclusion that treatment may not be effective,
there is sufficient evidence to support the juvenile court’s decision to require public registration.
S.M. argues that other evidence showed he was unlikely to reoffend and had the ability to
respond to treatment. He points to other evidence that S.M. had himself been abused, that there
were reports that S.M. exhibited “unusually positive behavior,” he “was spending more time in
general classes than Special Education classes,” and that he desired to become eligible to play
football. However, the weight to attribute this evidence was for the juvenile court to decide in its
discretion, and this court is in no position to question that assessment. See In re T.E.G., 222
S.W.3d 677, 678 (Tex. App.—Eastland 2007, no pet.).
       Likewise, we conclude that the juvenile court acted within its discretion in concluding
that S.M. failed to show that the protection of the public would not be increased by registration
or that any increase in protection of the public resulting from registration is clearly outweighed
by the anticipated substantial harm to S.M. See In re C.G.M., 2012 WL 2988818, at *3. To the
contrary, the record shows that S.M. continually violates the law, that he is dangerous, and that
he has shown predatory behavior against individuals who may not comprehend or be able to


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resist his actions. Furthermore, given the counselor’s assessment that S.M. may not respond well
to treatment, and in light of the other evidence in the record described above, we cannot conclude
that the trial court’s decision to require public registration was arbitrary, unreasonable, or made
without reference to guiding rules or principles.
         S.M.’s sole issue is overruled.


                                                    DISPOSITION
         Having overruled S.M.’s sole issue, we affirm the judgment of the juvenile court.



                                                                SAM GRIFFITH
                                                                   Justice



Opinion delivered March 13, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




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                                   COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                            JUDGMENT

                                            MARCH 13, 2013


                                          NO. 12-12-00264-CV


                          IN THE INTEREST OF S.M., A JUVENILE



                               Appeal from the County Court at Law #3
                          of Smith County, Texas. (Tr.Ct.No. 003-0012-12)


                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                        Sam Griffith, Justice.
                        Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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