



In re CL, Jr                                                        



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-93-234-CV



IN THE MATTER OF C. L., JR.,

	APPELLANT


 


FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY,

NO. 2127, HONORABLE T. G. MARESH, JUDGE PRESIDING

 


	This is an appeal from an order of the juvenile court of Williamson County
transferring C. L., appellant, to the custody of the Texas Department of Criminal Justice for the
completion of a twenty-year determinate sentence.  See Tex. Fam. Code Ann. § 54.11 (West
Supp. 1994).  Appellant brings twenty-six points of error, which can be divided into three broad
areas of complaint:  (1) the trial court erred in recessing the transfer hearing until a date less than
thirty days before appellant's eighteenth birthday; (2) the trial court erred in admitting evidence
relevant to a count dismissed by plea bargain, thus allowing the State to prove by a lesser burden
than beyond a reasonable doubt that appellant committed a different offense from the one for
which he was adjudged delinquent; and (3) the trial court abused its discretion in ordering
appellant's transfer to the Texas Department of Criminal Justice.  We will affirm the trial court's
order.


FACTUAL AND PROCEDURAL BACKGROUND
	On July 21, 1989, pursuant to a plea bargain, appellant waived certain of his
procedural rights under the Family Code and signed a stipulation in which he judicially confessed
to having engaged in delinquent conduct by committing the offense of aggravated sexual assault,
by his acts and words placing the victim in fear of serious bodily injury.  The prosecutor waived
four other counts, including counts alleging that appellant committed the assault by using or
exhibiting a deadly weapon.  At the disposition hearing, the juvenile court sentenced appellant to
a determinate sentence of twenty years.
	On January 12, 1993, thirty-two days before appellant's eighteenth birthday, the
juvenile court commenced a hearing to determine whether appellant should be released under
supervision of the Texas Youth Commission ("TYC") or transferred to the Texas Department of
Criminal Justice ("TDCJ").  A TYC report recommending that appellant be released under its
supervision was admitted into evidence at the beginning of the hearing.  After the testimony of
only two witnesses, a representative of TYC and the victim of the offense, the hearing was
recessed.  Appellant objected to any recess beyond the next day, January 13.  The court, however,
scheduled the hearing to resume on January 19.
	On January 19, 1993, the hearing resumed and was concluded.  On January 20, the
court signed an order transferring appellant to TDCJ for the completion of his determinate
sentence.  The court signed findings of fact and conclusions of law on February 9.


DISCUSSION

1.  Continuance of Hearing
	Appellant brings eight points of error complaining of the trial court's continuance
of the hearing.  In point of error four, appellant contends that the trial court erred in granting a
recess from the hearing on January 12 until January 19.  In point of error five, appellant asserts
that the trial court erred in failing to complete the hearing on January 13.  In point of error six,
appellant asserts that the trial court erred in finding that:  "On January 12, 1993, a hearing was
held in this matter."  In point of error seven, appellant contends that the trial court erred in
making the finding or conclusion that:  "This hearing was held before thirty days before
[appellant's] eighteenth birthday in accordance with § 54.11(h) of the Texas Family Code."  In
points of error eight and nine, appellant asserts that there was no evidence or insufficient evidence
to support the finding that:  "This court sitting as a juvenile court, did not receive notice of the
transfer/release hearing until January 5, 1993, 39 days before [appellant's] eighteenth birthday." 
In points of error eighteen and nineteen, appellant contends that there was no evidence or
insufficient evidence to support the "mislabeled conclusion of law" that "[TYC] failed to comply
with Section 61.079 of the Texas Human Resources Code."
	Section 54.11(h) of the Family Code provides that a release hearing "must be held
before 30 days before the person's 18th birthday."  Although appellant's release hearing began
more than thirty days before his eighteenth birthday, it did not conclude until less than thirty days
before his birthday.
	Appellant asserts that "held" in section 54.11(h) refers to a complete hearing. 
Therefore, because appellant's hearing was not completed at least thirty days before his eighteenth
birthday, appellant contends that the order of transfer must be vacated.  Appellant also bases much
of his argument on the relationship between section 54.11 of the Family Code and the 1987
version of section 61.084 of the Human Resources Code. (1)  Appellant contends that if a release
hearing had not been held, he would have been automatically transferred to TDCJ, resulting in
a violation of his constitutional rights to due process.  He asserts that he "was prevented, by the
Court not holding the hearing in compliance with the time deadline of §54.11(h), from having an
opportunity to obtain an [sic] court order releasing him prior to transfer to the [TDCJ]."
	We believe the term "held" in section 54.11(h) of the Family Code should be
construed to mean that the transfer hearing must begin more than thirty days before the potential
transferee's eighteenth birthday.  See Robert O. Dawson, Texas Juvenile Law 195 (3d ed. 1992). 
In other words, "held" refers only to the beginning of the hearing, not to its conclusion.  Had the
legislature intended that the hearing be completed at least thirty days before the juvenile's
eighteenth birthday, or that the court's order be rendered or signed by such date, it would have
been a simple matter for the legislature to have so specified in the statute itself.
	Furthermore, we fail to see how appellant was harmed by the recess.  See Tex. R.
App. P. 81(b)(1).  The harm that appellant complains of would have occurred only if no transfer
hearing had been held at all.  However, appellant was afforded a full hearing, which concluded
before his eighteenth birthday.  Appellant's points of error four through seven are overruled.
	In points of error eight and nine, appellant complains of the trial court's finding
that it did not receive notice of the transfer hearing until thirty-nine days before appellant's
eighteenth birthday.  In points of error eighteen and nineteen, appellant complains of the trial
court's finding that TYC failed to timely send a notice of transfer in compliance with section
61.079 of the Human Resources Code.  We fail to see how appellant was harmed by these
findings, even if they were erroneous.  See Tex. R. App. P. 81(b)(1).  We overrule appellant's
eighth, ninth, eighteenth, and nineteenth points of error.


2.  Admission of Evidence of Knife
	Appellant brings two points of error in which he complains of the admission of
evidence that he used a knife in committing the aggravated sexual assault for which his
determinate sentence was imposed.  In point of error twenty-five, appellant asserts that the trial
court erred in permitting introduction of evidence of a count dismissed by plea bargain.  In point
of error twenty-six, appellant contends that the trial court erred by allowing the State to prove by
a lesser burden of proof than "beyond a reasonable doubt" that he committed a different offense
from the one of which he was convicted.
	In July 1989 appellant entered a "Stipulation" in which he "judicially confessed"
to the allegations in the State's petition.  Four counts of the petition, three of which involved
allegations that a knife was used in the offense, had been "crossed out."  The fifth and remaining
count, to which appellant judicially confessed, did not involve an allegation regarding a knife. 
Appellant claims that the crossed-out counts were dismissed and, therefore, that evidence that a
knife was used in the assault should not have been admitted at the transfer hearing.
	Appellant has not properly preserved these points of error for appeal.  In describing
the attack, the victim testified that appellant used a knife.  Appellant did not object to this
testimony.  A timely objection, stating the specific grounds for the desired ruling, must be made
to preserve error for appeal.  Tex. R. App. P. 52(a); see C.D.R. v. State, 827 S.W.2d 589, 592
(Tex. App.Houston [1st Dist.] 1992, no writ).  We do not agree with appellant's characterization
of the alleged error as "fundamental," nor do we believe that appellant properly preserved these
points by raising them for the first time in a motion for new trial.
	However, even if we believed that appellant properly preserved the points, we
would conclude that the trial court did not err in admitting the evidence.  We disagree with
appellant's characterization that the evidence was used to show he committed a different offense
from the one to which he judicially confessed.  The release hearing did not involve issues of guilt
or innocence, nor a determination or imposition of punishment; rather, the only issue was whether
appellant should be transferred to TDCJ or released under the TYC parole plan.  In making this
determination, the court was guided by section 54.11(j) of the Family Code, which authorized the
court to consider "the nature of the penal offense that the person was found to have committed and
the manner in which the offense was committed[.]"  We conclude that evidence that a knife was
used in the attack was admissible to show the manner in which the aggravated sexual assault was
committed.
	Appellant also argues that the State was bound by its earlier plea bargain and could
not introduce evidence regarding the knife.  However, there is nothing in the record to indicate
what agreement was reached between appellant and the State.  Finally, appellant argues that the
State was collaterally estopped from presenting evidence that a knife was used in the attack.  As
support for this proposition, appellant cites Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App.
1986).  In Tarver, the court held that the state could not prosecute an assault case where the facts
supporting the charge had been affirmatively found "not true" in a probation revocation hearing. 
Id. at 198.  The court emphasized the narrowness of its holding, noting that a mere overruling of
a motion to revoke probation, without an express finding as to an essential fact, would not bar
subsequent prosecution.  Id. at 200.  Furthermore, an acquittal of the offense would not bar a
subsequent revocation of probation based on the same allegations.  Id.  The facts of this case are
distinguishable from those in Tarver.  In this case, the trial court in the adjudication proceeding
did not make an affirmative finding that a knife was not used.  Instead, the counts relating to the
use of the knife were simply dismissed.  We overrule points of error twenty-five and twenty-six.


3.  Order of Transfer
	Appellant challenges the trial court's order of transfer in three ways.  First, in point
of error twenty-four, appellant asserts that the trial court abused its discretion in ordering his
transfer to TDCJ.  Second, in thirteen points of error, appellant challenges the legal and factual
sufficiency of the evidence to support some of the trial court's findings of fact and conclusions
of law. (2)  Third, in points of error twenty-two and twenty-three, appellant complains that the trial
court failed to consider all the factors set forth in section 54.11 of the Family Code and considered
a factor not listed in that section.
	The trial court had discretion to determine whether to order a transfer to TDCJ for
the completion of the determinate sentence or to order a release under the supervision of TYC. (3) 
In exercising this discretion, the Family Code provides that the court


may consider the experiences and character of the person before and after
commitment to the youth commission, 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 youth commission and prosecuting attorney, the best interests of the person,
and any other factor relevant to the issue to be decided.


Family Code § 54.11(j).  The trial court is not required to consider all of the factors, and the court
is expressly allowed to consider unlisted but relevant factors.  Evidence of each listed factor is
not required.  Similarly, the court may assign different weights to the factors it considers.
	In reviewing the trial court's decision, we utilize an abuse of discretion standard. 
In re J.C.D., No. 3-93-256-CV, slip op. at 2 (Tex. App.Austin Feb. 16, 1994, no writ); Garrett
v. State, 847 S.W.2d 268 (Tex. App.Texarkana 1992, no writ); C.D.R., 827 S.W.2d 589.  To
apply that standard, we look to see whether the court acted without reference to guiding rules or
principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert.
denied, 476 U.S. 1159 (1986); J.C.D., slip op. at 2; Garrett, 847 S.W.2d at 270.  Stated
somewhat differently, we must determine whether the trial court acted in an unreasonable or
arbitrary manner.  Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).  We may
not reverse for abuse of discretion merely because we disagree with the trial court's decision, as
long as the decision was within the trial court's discretionary authority.  Beaumont Bank, N.A.,
806 S.W.2d at 226; J.C.D., slip op. at 2.
	The trial court in this case made the following findings of fact:


 7.	A [TYC] representative testified that [appellant] poses a moderate to high risk
of re-offending.  A moderate risk means the person will re-offend if no
therapy is provided, high risk means the person will re-offend regardless if
therapy is provided.

 8.	[Appellant] continues to have considerable difficulty with sex-offender issues,
and it is in this area which he is most likely to display lapses of emotional
control.

 9.	[Appellant] committed the offense of Aggravated Sexual Assault in a brutal
manner.

10.	The victim of the assault suffers from life-long injuries as a result of the
manner in which the offense was committed.

11.	The victim of the assault is fearful of her safety if [appellant] were to be
released as a result of this hearing.

12.	At this time, [appellant] has served less than one-fourth of his sentence.

	. . . .

20.	The Court finds that the testimony of [appellant] lacked credibility.


Appellant does not challenge these findings on appeal, and our review of the record indicates they
are supported by sufficient evidence.  Instead, Appellant challenges other findings and points to
testimony that would have supported a decision to release him under the TYC parole plan.
	We do not review the trial court's action by determining whether we would have
made the same decision, but rather by determining if the trial court's action was without reference
to guiding rules or principles or was unreasonable or arbitrary.  Beaumont Bank, N.A., 806
S.W.2d at 226; J.C.D., slip op. at 2; Garrett, 847 S.W.2d at 270.  After reviewing the record
in light of the factors set forth in section 54.11(j) of the Family Code, we cannot say that the trial
court abused its discretion in ordering appellant transferred to TDCJ for the remainder of his
determinate sentence.  We overrule appellant's point of error twenty-two, twenty-three, and
twenty-four.  Because we find that the trial court did not abuse its discretion, we do not address
points of error one through three, ten through seventeen, twenty, and twenty-one, which attack
the legal and factual sufficiency of the evidence to support several of the trial court's findings of
fact and conclusions of law.


CONCLUSION
	We affirm the trial court's order.


  
					J. Woodfin Jones, Justice
Before Justices Powers, Jones and Kidd
Affirmed
Filed:   April 13, 1994
Publish
1.        Under former section 61.084(b) of the Human Resources Code,

[TYC] shall transfer to [TDCJ] a person who is 18 years of age and who was
committed to [TYC] under a determinate sentence . . . if:

(1)	the sentence has not been completed by the person before the 18th
birthday of the person;

(2)	the person has not been finally released by [TYC] with the approval of
the juvenile court that entered the order of commitment; and

(3)	the person has not been the subject of an order by the juvenile court
that entered the order of commitment requiring [TYC] to release the
person.

Act of May 27, 1987, 70th Leg., R.S., ch. 385, § 16, 1987 Tex. Gen. Laws 1891, 1897
(Tex. Human Res. Code § 61.084(b), since amended).
2.        Appellant challenges the following findings of fact:

13.	[Appellant's] aggressive impulsivity did not decrease during his
commitment to [TYC].

14.	[TYC] has minimized the risks involved in releasing [appellant] into the
community.

15.	[TYC's] parole plan does not sufficiently address the risks involved in
releasing [appellant].

16.	Release at this time would pose serious problems because [appellant] is
not inclined to turn toward others for help.

Appellant also challenges the following conclusions of law:

 7.	At this time, it is in [appellant's] best interest to be transferred to
[TDCJ].

 8.	At this time, [appellant's] transfer to the [TDCJ] is in the best interest of
the community.
3.        The court's options in this case were governed by former section 54.11(i) of the
Family Code.  Act of May 27, 1987, 70th Leg., R.S., ch. 385, § 13, 1987 Tex. Gen. Laws
1891, 1897.  That section has now been amended to allow the court to order a transfer to
TDCJ for the completion of the determinate sentence, recommit to TYC without a
determinate sentence, or order a final discharge.  Family Code § 54.11(i).

