                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00367-CV


IN THE MATTER OF M.J.-M.




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         FROM THE COUNTY COURT AT LAW OF COOKE COUNTY
                    TRIAL COURT NO. JV612-12

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                       MEMORANDUM OPINION1

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                                  I. Introduction

     In two points, appellant M.J.-M. appeals the trial court’s order transferring

him from the Texas Juvenile Justice Department (TJJD) to the Texas Department

of Criminal Justice (TDCJ) to complete his determinate ten-year sentence for



     1
      See Tex. R. App. P. 47.4.
aggravated assault on a public servant while in TJJD’s custody.2 See Tex. Penal

Code Ann. § 22.02(b)(2)(B) (West 2011) (aggravated assault on a public servant

is a first-degree felony); Tex. Fam. Code Ann. § 53.045(a)(6) (West 2014)

(aggravated assault offense is eligible for determinate sentence). We affirm.

                    II. Factual and Procedural Background

      In 2014, after M.J.-M. turned eighteen years old, the State moved to

transfer M.J.-M.’s determinate sentence to TDCJ.       At the November 7, 2014

hearing, the State’s sole witness was Leonard Cucolo, TJJD’s court liaison. The

trial court took judicial notice of the court’s file and the TJJD records and

Cucolo’s report without objection. It also admitted without objection Petitioner’s

Exhibit 1, a November 3, 2014 incident report from TJJD that documented an

incident that had occurred four days prior to the transfer hearing wherein M.J.-M.

exposed his penis to female staff members and masturbated in front of them.

M.J.-M. raised no objections during Cucolo’s testimony.




      2
        M.J.-M. was fourteen years old when he was committed to TJJD in April
2011 after his community supervision was revoked. He pleaded “true” to
committing an aggravated assault on a public servant in 2012 while in TJJD’s
custody (after the State gave notice that it sought a determinate sentence for the
offense). See Tex. Fam. Code Ann. § 54.04(d)(3)(A)(ii) (West 2014) (providing
for possible transfer from TJJD to TDCJ for a term of not more than forty years
for a first-degree felony). M.J.-M.’s stipulation to the evidence reflected that he
struck a TJJD officer in the face while she was supervising the juvenile inmates
in TJJD custody and fractured her cheek bone and the bone around her left eye
(left orbital). Her injuries necessitated medical treatment from an eye specialist
and caused her to miss more than a month of work.

                                        2
      Cucolo testified that M.J.-M. met all of the criteria for transfer to TDCJ to

complete his sentence by:       committing new felony offenses and Class A

misdemeanors, engaging in chronic disruption, violating twenty-six major rules,

resulting in sixteen Level II hearings, and failing to progress in treatment despite

having been provided with services to help remediate his behavior, including

individual counseling, group counseling, and specialized treatment programs. In

total, the evidence of M.J.-M.’s behavioral history reflected more than 200

documented incidents of misconduct, 131 referrals to the security unit, and 86

security placements.3

      Cucolo stated that M.J.-M. was chronically disruptive and engaged in

violent, aggressive behavior with staff and youth, “making it very difficult—an

unsafe environment for the staff, unsafe environment for the kids, and it’s making

it difficult for the other youth that are there for similar offenses, determinate

sentences as well, to engage in the program.” According to Cucolo, M.J.-M. had

continued to engage in serious misconduct, assaults, “major disruption[s] of

facility,” fleeing from apprehension, and exposure, even after he was warned in

February 2014 that his psychological evaluation would be shared with the special

services committee to make a decision about a return to court. Cucolo described

M.J.-M. as a danger to any community to which he might be released.



      3
       These numbers include misconduct occurring prior to M.J.-M.’s receiving
his determinate sentence.

                                         3
      M.J.-M. and his paternal aunt S.M. both testified, seeking leniency, and the

trial court permitted S.M. to testify about hearsay statements over the State’s

objection. During M.J.-M.’s testimony, he admitted that while incarcerated he

had committed unprovoked assaults on other youths on numerous occasions and

agreed that many of his fights and major rule violations were a direct result of

gang violence, either his own fighting for other gang members or his “being run

up on by other members.”4 M.J.-M. said that he was 5’4” tall and that all of his

fights had been with people bigger than him. He stated that if he refused to beat

people up as directed by his gang, there would be consequences, such as being

assaulted himself. After hearing testimony from the State’s sole witness and

M.J.-M. and his aunt, the trial court granted the motion.

                                  III. Discussion

      In his two points, M.J.-M. challenges the sufficiency of the evidence to

support the trial court’s finding that he was a threat or danger to himself or others

and complains that the only evidence presented by the State was “unreliable and

non-credible hearsay testimony” in violation of his right to confrontation under the

Sixth Amendment.

      In his second point, M.J.-M. asks us to adopt the dissenting opinion in In re

M.P., 220 S.W.3d 99, 115 (Tex. App.—Waco 2007, pet. denied) (Vance, J.,

dissenting) (concluding that a juvenile should be afforded the Sixth Amendment

      4
       The offense for which M.J.-M. had received the determinate sentence
involved his attempt to get into a gang.

                                         4
confrontation right in the disposition phase of a juvenile proceeding). Doing so

would require a departure from our conclusion in In re S.M., 207 S.W.3d 421,

425 (Tex. App.—Fort Worth 2006, pet. denied), that Crawford v. Washington,

541 U.S. 36, 124 S. Ct. 1354 (2004), does not apply in juvenile transfer

hearings.5 We decline this invitation.

      We review a trial court’s decision to transfer a juvenile under family code

section 54.11 for an abuse of discretion. In re J.M., No. 02-05-00180-CV, 2005

WL 3081648, at *3 (Tex. App.—Fort Worth Nov. 17, 2005, no pet.) (mem. op.). If

some evidence exists to support the trial court’s decision, there is no abuse of

discretion.   Id.   As set out above, some evidence supports the trial court’s

decision; therefore, we overrule this portion of M.J.-M.’s two points.




      5
        See S.M., 207 S.W.3d at 425 (concluding that Russeau v. State, 171
S.W.3d 871, 880–81 (Tex. Crim. App. 2005), cert. denied, 548 U.S. 926 (2006)—
which held that the introduction of prison incident and disciplinary reports violated
the Sixth Amendment’s Confrontation Clause—did not apply to juvenile
proceedings because the Confrontation Clause explicitly applies to “criminal
prosecutions,” the reports in Russeau were admitted at the punishment stage of
the defendant’s criminal trial, and a transfer hearing under family code section
54.11 is not a trial because the juvenile is neither being adjudicated nor
sentenced; instead, the transfer hearing is a “second chance hearing” after the
juvenile has already been sentenced to a determinate number of years); see also
In re C.E.C., No. 02-06-00065-CV, 2006 WL 3627134, at *2 (Tex. App.—Fort
Worth Dec. 14, 2006, no pet.) (mem. op.) (“A juvenile . . . has no right of
confrontation at a discretionary transfer hearing. Therefore, the trial court did not
abuse its discretion by overruling appellant’s objection based on the
Confrontation Clause.”); In re D.J., 909 S.W.2d 621, 623 (Tex. App.—Fort Worth
1995, writ dism’d w.o.j.) (“A seeming violation of a juvenile’s Sixth Amendment
right to confrontation is not error at a transfer hearing.”).

                                         5
      Because he did not lodge any objections to any of the evidence admitted in

the transfer hearing, M.J.-M. failed to preserve the remainder of his points for our

review. See Tex. R. App. P. 33.1. Therefore, we overrule the remainder of his

two points as unpreserved.

                                 IV. Conclusion

      Having overruled both of M.J.-M.’s points, we affirm the trial court’s order

of transfer.



                                                   /s/ Bonnie Sudderth
                                                   BONNIE SUDDERTH
                                                   JUSTICE

PANEL: GARDNER, WALKER, and SUDDERTH, JJ.

DELIVERED: August 6, 2015




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