      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-17-00665-CV



                                      In the Matter of C. Z.


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
          NO. J-31770, HONORABLE RHONDA HURLEY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In June 2015, C.Z., a juvenile at the time, pleaded true to the allegation that he had

committed the offense of aggravated robbery with a deadly weapon. See Tex. Penal Code § 29.03(a).

The juvenile court accepted his plea and found that the allegation was true. The court assessed

a 12-year determinate sentence, and C.Z. was placed in the Travis County Juvenile Probation

Department–Local Commitment Program (LCP). See Tex. Fam. Code § 54.04011(c)(2)(a). In

July 2017, the LCP referred C.Z. to the juvenile court for transfer to the Texas Department of

Criminal Justice–Institutional Division (TDCJ). See Tex. Hum. Res. Code § 152.0016(j)(1). After

holding a hearing, the juvenile court signed an order transferring C.Z. to TDCJ to complete his

sentence. See Tex. Fam. Code § 54.11(i)(2). C.Z. now appeals, contending in two issues that the

juvenile court abused its discretion in ordering him transferred to TDCJ and that he was denied

effective assistance of counsel at the adjudication and disposition proceedings. We will affirm the

juvenile court’s order.
                                           DISCUSSION

Transfer Order

               In his first appellate issue, C.Z. contends that the juvenile court abused its discretion

in transferring him to TDCJ because the juvenile court’s findings of fact and conclusions of law

“contain several findings completely devoid of evidentiary support,” and the court’s “ultimate

decision on transfer . . . is unreasonable and arbitrary and must be reversed.”

               If a juvenile court in a county that operates a post-adjudication secure correctional

facility finds that a juvenile has engaged in delinquent conduct constituting the felony offense of

aggravated robbery, the court may commit the juvenile to a post-adjudication secure correctional

facility with a determinate sentence. See id. § 54.04011(a), (b), (c)(2)(A) (providing for commitment

to post-adjudication secure correctional facility if juvenile commits an offense listed under Tex. Fam.

Code § 53.045); id. § 53.045(a)(7) (listing aggravated robbery as offense eligible for a determinate

sentence). Later, before the juvenile becomes 19 years of age, the operator of the post-adjudication

secure correctional facility “may refer the child to the juvenile court that entered the order of

commitment for approval of the child’s transfer to [TDCJ] for confinement if the child has not

completed the sentence and . . . the child’s conduct, regardless of whether the child was released

under supervision through a program established by the board or department, indicates that the

welfare of the community requires the transfer . . . .” Tex. Hum. Res. Code § 152.0016(j)(1). The

juvenile court must then hold a hearing. See Tex. Fam. Code § 54.11(a). After the hearing, the

juvenile court may order that the juvenile be returned to the post-adjudication secure correctional

facility or transferred to TDCJ. See id. § 54.11(i).



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                The statute provides a non-exclusive list of factors that the juvenile court may

consider when deciding whether to transfer the juvenile to TDCJ:


        In making a determination under this section, the court may consider the experiences
        and character of the person before and after commitment to the Texas Juvenile Justice
        Department 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 Texas Juvenile Justice Department, 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.


Id. § 54.11(k). Consideration of this non-exclusive list of statutory factors is discretionary. See Tex.

Gov’t Code § 311.016(1) (“‘May’ creates discretionary authority or grants permission or a power.”).

“The juvenile court is not obliged to consider all of the factors listed, and it may consider relevant

factors not listed.” In re N.G.-D., No. 03-14-00437-CV, 2016 WL 105948, at *3 (Tex. App.—Austin

Jan. 8, 2016, no pet.) (mem. op.); see In re N.K.M., 387 S.W.3d 859, 864 (Tex. App.—San Antonio

2012, no pet.); In re J.J., 276 S.W.3d 171, 178 (Tex. App.—Austin 2008, pet. denied). Moreover, the

juvenile court can assign different weights to the factors considered. See In re N.K.M., 387 S.W.3d

at 864; In re J.J., 276 S.W.3d at 178.

                We review a juvenile court’s decision to transfer a juvenile to TDCJ for an abuse

of discretion. See In re M.C., 502 S.W.3d 852, 854 (Tex. App.—Texarkana 2016, pet. denied);

In re J.J., 276 S.W.3d at 178. “If some evidence exists to support the juvenile court’s decision,

there is no abuse of discretion.” In re D.J., No. 07-16-00013-CV, 2018 WL 828344, at *2 (Tex.

App.—Amarillo Feb. 12, 2018, no pet. h.) (mem. op.) (citing In re D.L., 198 S.W.3d 228, 229 (Tex.



                                                   3
App.—San Antonio 2006, pet. denied)). “We do not substitute our decision for that of the juvenile

court and we reverse its order only if the juvenile court acted in an unreasonable or arbitrary

manner.” Id. (citing In re J.L.C., 160 S.W.3d 312, 313 (Tex. App.—Dallas 2005, no pet.)).

               C.Z. argues that several of the juvenile court’s findings are not supported by the

record and that “[t]he cumulative effect of the court’s reliance on erroneous fact-finding renders

the ultimate transfer decision unreasonable and arbitrary.” We begin by noting that C.Z. has not

challenged the remainder of the juvenile court’s findings, including the following:


       •       Prior to commitment to LCP, [C.Z.] was previously referred to the juvenile
               court for twenty-one allegations of delinquent conduct. The first referral
               occurred when [C.Z.] was 11 years of age.

       •       Prior to commitment to LCP, [C.Z.] was previously adjudicated for the felony
               offenses of Burglary of a Habitation . . . Evading with a Vehicle . . . and
               Assault of a Public Servant . . . .

       •       Prior to commitment to LCP, [C.Z.] was a high risk for future antisocial (if
               not violent) behavior.

       •       Prior to commitment to LCP, [C.Z.] was a member of a gang.

       •       While in LCP, [C.Z.] committed several Level II violations including:
               (1) Possession of Contraband . . . (2) Engaging in Gang-Related Activity . . .
               (3) Assault on Juvenile with Injury . . . (4) Gang-Related Activity . . .
               (5) Fleeing Apprehension . . . (6) Attempted Assault . . . . Additionally,
               [C.Z.] continued to violate policies of LCP as demonstrated by the Serious
               Incident Reports admitted into evidence.

       •       [C.Z.] was provided opportunities but failed to complete vocational training
               while at LCP . . . .

       •       While in LCP, [C.Z.] did not fully participate in rehabilitative treatment and
               failed to complete the requisite four phases of treatment and counseling.




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       •       The psychological evaluation . . . supports a finding that [C.Z.] is a future risk
               to engage in antisocial (if not violent) behavior.

       •       [C.Z.] continued to be a member of a gang while in LCP.

       •       The Court considered the abilities of [C.Z.] to contribute to society and found
               the abilities to be lacking. [C.Z.], on several occasions, refused to participate
               in vocational training.

       •       The Court considered the recommendations of LCP and the prosecuting
               attorney. These recommendations strongly urged the transfer of [C.Z.] to
               TDCJ.

       •       The Court considered the best interests of [C.Z.] who had failed to complete
               the rehabilitative counseling and treatment offered as well as much of the
               vocational training. [C.Z.] continues to be a risk for future antisocial (if not
               violent) behavior. A potential release into the community would not benefit
               [C.Z.] in that [C.Z.] is incapable of handling the mundane pressures of life.
               [C.Z.] continues to be impulsive, is not well equipped for future employment,
               and he could potentially add to his criminal history record by committing
               new crimes.

       •       The Court considered all other relevant factors raised by State’s counsel and
               [C.Z.’s] counsel.

       •       The welfare of the community requires that [C.Z.] be transferred to [TDCJ]
               to complete his determinate sentence . . . .


These unchallenged findings show that the juvenile court carefully considered many of the

discretionary factors found in Texas Family Code section 54.11(k) and that its decision to transfer

C.Z. to TDCJ was not unreasonable or arbitrary.

               Moreover, C.Z.’s challenges to the court’s findings are unavailing. C.Z. first argues

that the record does not support the juvenile court’s findings “related to the seriousness of the

offense.” As discussed above, C.Z. pleaded true to the allegation that he committed aggravated

robbery with a deadly weapon. The evidence presented at the transfer hearing showed that the

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robbery took place at a convenience store. The complainant left his car running when he entered

the store to deliver newspapers. C.Z. got into the car and started to drive away. The complainant

reached into the car through the window while trying to stop C.Z. from stealing the car. The

complainant’s arm got stuck in the car, and C.Z. drove away. C.Z. told the complainant, “I’m going

to kill you.” After being dragged some distance, the complainant fell away from the car, sustaining

minor injuries.

                  The juvenile court found that C.Z. “committed a serious felony offense that could

have ended the life of the victim” and that “the nature of the offense” was “callous and cruel.” C.Z.

argues that the record does not support this finding because the complainant was not a credible

witness. C.Z. points out that the complainant revised certain details of his testimony at the transfer

hearing after C.Z.’s counsel played a video of the incident. However, these details were not material,

and the record indicates that the video itself corroborated the complainant’s basic account that C.Z.

stole his car. In addition, the juvenile court was the sole judge of the credibility of the witnesses,

and we give great deference to the juvenile court’s findings of historical fact. See In re C.R.M.,

No. 03-14-00814-CV, 2016 WL 4272115, at *1 (Tex. App.—Austin Aug. 10, 2016, no pet.) (mem.

op.); In re J.D., No. 10-13-00112-CV, 2013 WL 5494709, at *4 (Tex. App.—Waco Sept. 26, 2013,

pet. denied) (mem. op.); In re L.C., No. 04-12-00326-CV, 2013 WL 1338358, at *3 (Tex. App.—San

Antonio Apr. 3, 2013, no pet.) (mem. op.); In re R.A., No. 03-11-00054-CV, 2012 WL 2989224,

at *3 (Tex. App.—Austin July 20, 2012, no pet.).

                  C.Z. further argues that the record does not support the juvenile court’s findings

concerning the seriousness of the offense because C.Z. could not have been adjudicated for the

offense of aggravated robbery with a deadly weapon when the item that he was stealing was the same

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item that he allegedly used as a deadly weapon—namely, the complainant’s car. According to C.Z.,

he had to possess the car before he could use it as a deadly weapon, and, if he possessed it, he was

not still in the process of stealing it. We disagree.

               A person commits robbery “if, in the course of committing theft . . . and with intent

to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes

bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of

imminent bodily injury or death.” Tex. Penal Code § 29.02(a). A person commits aggravated

robbery “if he commits robbery as defined in Section 29.02, and he . . . uses or exhibits a deadly

weapon . . . .” Id. § 29.03(a)(2). When C.Z. drove away with the complainant’s arm stuck in the

car’s window, C.Z. was still in the process of “maintain[ing] control of the property,” and, therefore,

still in the process of committing robbery. See id. § 29.02(a). And, while thus engaged in robbery,

he used the car as a deadly weapon by dragging the complainant along a street, where he could have

been seriously injured or killed by the vehicle that C.Z. was stealing or by other vehicles driving on

the street. The fact that the same vehicle was alleged as both the item being stolen and as the deadly

weapon is immaterial. Therefore, the record supports the juvenile court’s findings related to the

seriousness of the offense.

               C.Z. also argues that the juvenile court “failed to consider the totality of C.Z.’s time

in the LCP.” C.Z. points to evidence presented at the transfer hearing allegedly showing that he was

making “significant progress” in the LCP. This evidence, according to C.Z., showed that the number

of incidents in which C.Z. was involved decreased each year, that he voluntarily participated in

rehabilitative activities, and that the incidents he was involved in were not as serious as those

found in other cases in which juvenile courts have ordered persons transferred to TDCJ. Despite the

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evidence to which C.Z. refers, however, the State presented evidence that C.Z. was involved in

multiple serious incidents while in the LCP and that he rejected several offers of rehabilitative and

vocational services. C.Z. has not challenged the juvenile court’s specific findings concerning these

incidents. Therefore, the evidence that C.Z. relies on does not negate the evidence supporting the

juvenile court’s findings that C.Z. is a threat to the community and that release into the community

would not benefit C.Z., nor does the evidence render arbitrary the court’s decision to transfer C.Z.

to TDCJ.

               Finally, C.Z. argues that the juvenile court “erred in making the finding that

‘protection of the victim and the victim’s family’ required transfer.” However, the court did not

find that this factor weighed in favor of transfer to TDCJ. Instead, the court merely found, “The

protection of the victim would not be advanced by returning [C.Z.] to LCP for release on parole.”

Moreover, even assuming, without deciding, that the record does not support this finding, the

juvenile court was not required to consider every factor, or to give every factor equal weight. See

In re N.K.M., 387 S.W.3d at 864; In re J.J., 276 S.W.3d at 178.

               In light of the juvenile court’s findings, which we have determined to be supported

by the record, we cannot conclude that the juvenile court abused its discretion in transferring C.Z.

to TDCJ. Accordingly, we overrule C.Z.’s first appellate issue.


Ineffective Assistance of Counsel

               In his second appellate issue, C.Z. contends that “he was denied effective assistance

of counsel at the adjudication and disposition stages of proceedings, in violation of the Sixth

Amendment and [Texas Family Code section] 54.03(b)(5), where counsel allowed him to plead

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guilty to and agree to a twelve year determinate sentence disposition on a legally deficient charging

document.” See Tex. Fam. Code § 54.03(b)(5) (“At the beginning of the adjudication hearing, the

juvenile court judge shall explain to the child and his parent, guardian, or guardian ad litem . . . the

child’s right to representation by an attorney if he is not already represented . . . .”). In this issue,

C.Z. again urges the argument discussed above that he could not have been adjudicated for

aggravated robbery with a deadly weapon when the State alleged that the same vehicle was both the

item stolen and the deadly weapon. C.Z. further argues that his counsel was ineffective in not

pursuing a ruling on his special exceptions and in allowing C.Z. to plead true to the allegation.

Finally, C.Z. argues that the record demonstrates that “he did not understand the consequences of

his plea agreement.” To prevail on his ineffective-assistance-of-counsel claim, C.Z. must show that

his “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment” and “that the deficient performance prejudiced the defense.”

See Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State, 726 S.W.2d 53,

57 (Tex. Crim. App. 1986).

                For the reasons discussed above, we conclude that the State’s original petition

alleging delinquent conduct was not legally deficient in alleging that the complainant’s vehicle was

both the item stolen and the deadly weapon. Further, we do not agree that the record shows that C.Z.

did not understand the consequences of his plea. C.Z. refers to the testimony of a juvenile probation

officer, who testified that C.Z. told her that “he thought the plea agreement was actually for a two

year period of time, and then once he got to LCP it was three.” Despite this testimony, the record

indicates, and the juvenile court could have concluded, that C.Z. was properly warned of the



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consequences of his plea; both the juvenile court at the plea hearing and the written plea agreement

that C.Z. and his attorney signed indicated that C.Z. could be held in the LCP until his nineteenth

birthday. Therefore, we cannot conclude that C.Z. received ineffective assistance of counsel.1

               Because the record before us does not demonstrate that C.Z. received ineffective

assistance of counsel, we overrule his second appellate issue.


                                          CONCLUSION

               Having overruled C.Z.’s appellate issues, we affirm the juvenile court’s order

transferring C.Z. to TDCJ.




       1
          In addition, we note that the State asserts that C.Z. cannot raise these complaints at this
stage of the proceedings, given that he waived his right to appeal the adjudication order when he
pleaded true to the allegation. As the State points out, the Family Code provides:


       A child who enters a plea or agrees to a stipulation of evidence in a proceeding
       held under this title may not appeal an order of the juvenile court entered under
       Section 54.03, 54.04, or 54.05 if the court makes a disposition in accordance with the
       agreement between the state and the child regarding the disposition of the case,
       unless:

       (1) the court gives the child permission to appeal; or

       (2) the appeal is based on a matter raised by written motion filed before the
       proceeding in which the child entered the plea or agreed to the stipulation of
       evidence.


Tex. Fam. Code § 56.01(n). Moreover, the reporter’s record of the plea hearing indicates that the
juvenile court warned C.Z., “ If I do follow the agreement, then you give up your right to appeal this
case, which is basically a right to ask a different judge to make a different decision,” and that C.Z.
agreed that he understood that warning.

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                                           __________________________________________

                                           Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: May 16, 2018




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