                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00235-CV

                                   In the MATTER OF J.D.H.M.

                     From the 289th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011JUV00227
                          The Honorable Carmen Kelsey, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: March 19, 2014

AFFIRMED

           Appellant J.D.H.M. appeals an order of transfer, transferring him from the Texas Juvenile

Justice Department (TJJD) to the Texas Department of Criminal Justice–Institutional Division

(TDCJ). On appeal, J.D.H.M. raises a single point of error, contending the juvenile court erred

when it transferred him to TDCJ because the record establishes he should have been placed on

parole with conditions. We affirm the trial court’s judgment.

                                              BACKGROUND

           According to documents in the record, J.D.H.M. received a call from a female individual

asking him if he wanted some marijuana. The female claimed she knew a drug dealer they could

rob. The female individual and a male individual picked up J.D.H.M., who claimed to be using

Xanax and marijuana that day. The male individual had a gun. When the three arrived at the drug
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dealer’s house, only J.D.H.M. went inside — he took the gun with him. Once inside, J.D.H.M.

pointed the gun at the individuals in the house and demanded marijuana, a scale, and the

television. 1 One of the individuals in the home carried the television outside and loaded it into the

waiting car. J.D.H.M. and the others left.

        Ultimately, J.D.H.M. was arrested. The State filed a petition alleging J.D.H.M. engaged

in delinquent conduct in that he committed an aggravated robbery. J.D.H.M. stipulated to the

charge and pursuant to a plea bargain agreement with the State, the juvenile court committed

J.D.H.M. to TJJD for a fifteen-year determinate sentence, with the possibility of transfer to TDCJ.

        After J.D.H.M. spent approximately two years in the TJJD, the Executive Director of the

TJJD advised the juvenile court that the agency was requesting J.D.H.M. be transferred to TDCJ

because he would not have completed his minimum required stay at TJJD before his nineteenth

birthday. After a hearing, the juvenile court ordered J.D.H.M. transferred to TDCJ to complete

his sentence. 2 J.D.H.M. perfected this appeal.

                                                   ANALYSIS

        As noted above, J.D.H.M. contends that the trial court abused its discretion in transferring

him to TDCJ rather than placing him on parole. We disagree.

                                             Standard of Review

        We review a juvenile court’s decision to transfer a juvenile from TJJD to TDCJ under an

abuse of discretion standard. In re L.G.G., 398 S.W.3d 852, 855 (Tex. App.—Corpus Christi 2012,

no pet.); In re J.J., 276 S.W.3d 171, 178 (Tex. App.—Austin 2008, pet. denied). A trial court

abuses its discretion if it acts without reference to guiding rules or principles of law. See id.


1
  In another portion of the record, it states J.D.H.M. demanded only the television.
2
  Once the Executive Director of the TJJD refers a juvenile for transfer, the juvenile court must hold a hearing to
determine whether transfer for completion of a determinate sentence is appropriate. TEX. FAM. CODE ANN. § 54.11(a),
(i) (West Supp. 2013).

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In determining whether there was an abuse of discretion, we review the entire record. Id. “If some

evidence exists to support the juvenile court’s decision, there is no abuse of discretion.” L.G.G.,

398 S.W.3d at 855 (emphasis added); see In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San

Antonio 2006, pet. denied). We will not substitute our judgment for that of the juvenile court, and

we will not reverse a decision by the juvenile court simply because we would have decided the

matter differently. L.G.G., 398 S.W.3d at 855.

                                          The Evidence

       At the transfer hearing, the State called Leonard Cucolo, the TJJD court liaison. Mr.

Cucolo had prepared a summary report that was submitted to the juvenile court prior to the hearing.

Mr. Cucolo began by noting that in 2010, prior to J.D.H.M.’s adjudication for the aggravated

robbery, J.D.H.M. had prior adjudications for possession of marijuana and evading arrest.

Although J.D.H.M. did well academically while in TJJD — obtaining a GED, vocational

certificates, and attending some college courses — his behavior had been a concern, causing Mr.

Cucolo to recommend a transfer to TDCJ.

       According to Mr. Cucolo, while in custody, J.D.H.M. “engaged in nine major rule

violations.” Mr. Cucolo stated major rule violations are new offenses committed by a juvenile

while confined in a TJJD facility that usually involve “some type of aggressive conduct.” In

J.D.H.M.’s case, the rule violations included assaults and possession of marijuana and other

contraband. Mr. Cucolo stated this behavior by J.D.H.M. was “pretty consistent and severe

throughout his stay.” However, Mr. Cucolo admitted that during the last six months, there was a

reduction in J.D.H.M.’s severe behavior. Nevertheless, he had engaged “in some pretty serious

behavior while he’s been confined . . . .” Mr. Cucolo described it as a pattern of behavior.

       Mr. Cucolo testified J.D.H.M. had seventy-six documented incidents of misbehavior, and

sixty-two of those resulted in referrals to security. In addition, there were forty incidents of
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program disruption. There were five assaults and three incidents of fighting. With regard to the

assaults, there were times when J.D.H.M. was the aggressor, assaulting other juveniles within the

facility. J.D.H.M. was also aggressive with TJJD staff, and in one incident, took documents

belonging to the facility and destroyed them.

       Mr. Cucolo testified J.D.H.M. had yet to advance to the Youth Empowerment Stage of the

program, which is the parole readiness stage. Once in this stage, the juvenile is considered ready

for parole because he has been actively participating in daily groups, continues to work and

complete academic objectives, and his behavior remains stable. J.D.H.M. was able to complete

the alcohol and drug program on his second attempt. He was removed from the program the first

time because of his behavior. J.D.H.M. also completed the “aggression replacement training

program,” basically an anger management program. Despite the completion of this program, his

aggressive conduct continued, though admittedly J.DH.M.’s last behavioral incident was several

months before the transfer hearing.

       When asked about family support if J.D.H.M. was released on parole, Mr. Cucolo testified

he was only aware of a grandmother — J.D.H.M.’s mother passed away a few months before the

hearing. Thus, J.D.H.M. would be sent to a halfway house with little or no family support, still

having issues with aggression and substance abuse, making him a danger to the community and

himself.

       Although the facility, the Giddings State School, recommended parole for J.D.H.M., Mr.

Cucolo recommended transfer to TDCJ. Mr. Cucolo said his decision was not easy for him, but

considering J.D.H.M.’s behavior during confinement, his previous history, and the lack of family

support, he had no choice because J.D.H.M. is “too much of a risk right now and not ready for

release.” The Executive Director of the TJJD, on behalf of the agency, joined Mr. Cucolo’s

recommendation.
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       In support of parole, J.D.H.M. called Dr. Enrique Covarrubias as a witness.            Dr.

Covarrubias, a psychologist with the Giddings State School, performed a psychological evaluation

of J.D.H.M. and prepared a report, which was considered by the juvenile court. Dr. Covarrubias

testified he spent two days evaluating J.D.H.M. He also consulted with facility staff. Both the

doctor and the facility recommended parole.

       Dr. Covarrubias testified that at the time of the evaluation, J.D.H.M. was working in the

cafeteria. He had received a certification in “automotive service excellence” and was taking

vocational classes. The doctor documented only fifty-six incidents of misbehavior, explaining that

he did not consider self-referrals, any incident overturned on appeal, or security extensions —

extensions of stays in security when the juvenile was already in security for some other reason.

Dr. Covarrubias stated he does not include such incidents because they are not “necessarily

misbehavior.”

       The doctor stated he has seen “quite a bit of improvement” in J.D.H.M.’s behavior over

time, noting J.D.H.M. entered the facility with a ninth grade education, but obtained his GED and

completed several facility programs. He was also taking “some college exam, entrance exam.”

J.D.H.M. told the doctor he wanted to take college courses, knew there were “loan programs” that

might allow him to do so, and would be willing to work any job to pay for it. The doctors said the

discussion about financial planning was something he does not typically “hear from other kids.”

J.D.H.M. received a vocational certification and was a peer mediator. Dr. Covarrubias said he saw

J.D.H.M. as “a youth with a lot of resilient factors considering his history.” The doctor then

provided details about J.D.H.M.’s childhood.

       When J.D.H.M. was a young boy, he was abused and neglected; his family had an extensive

history with Child Protective Services. J.D.H.M.’s parents had substance abuse problems that led

to legal issues. His father died at age thirty-five, and his mother and best friend passed away in
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the months before the transfer hearing. All of these losses caused J.D.H.M. “grief related issues.”

According to Dr. Covarrubias, J.D.H.M. has family support from his grandmother, and he also

“talks quite a bit to his brother.” The doctor said he mentioned other family members, but they

did not really focus on them.

       With regard to J.D.M.H.’s “Individualized Case Plan,” which the doctor described as a

report card for the juveniles, he was originally identified as high risk, but he made improvement.

Although J.D.M.H. has behavior problems, he felt remorse, and the doctor felt he was functioning

at a high level. The doctor testified he believed J.D.H.M. would be more successful in a halfway

house than in prison. Dr. Covarrubias felt J.D.H.M. needed the structure a halfway house would

provide: curfew, drug testing, and demands to work. If J.D.H.M. went to prison, the doctor feared

he would lose the ground he had gained in the TJJD facility.

       J.D.H.M.’s maternal grandmother testified on his behalf. She provided information on his

difficult childhood and his mother’s instability. According to the grandmother, J.D.H.M.’s father

was emotionally abusive to J.D.H.M. and his mother. She described the father as “a bit of a control

freak person.” He isolated J.D.H.M. and his mother from the mother’s family. After J.D.H.M.’s

father died, his mother had trouble — “single parenting . . . was more than she could handle.”

J.D.H.M.’s mother was unable to maintain a job.

       Both his grandmother and two of his maternal aunts testified they have seen improvement

in J.D.H.M. since his placement in TJJD. The grandmother stated that when J.D.H.M.’s mother

was hospitalized before her death, J.D.H.M. came to the hospital and the grandmother “saw a

different human being.” J.D.H.M. was calmer, his eyes were softer, and he embraced the family,

seeming to trust them. His grandmother testified that if he were paroled, she and her four sisters

would be supportive, but she believed a controlled environment, such as a halfway house, would



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be appropriate. She described J.D.H.M. as capable and bright, a leader who simply made “some

horrible choices.”

                                             Application

       In determining whether a juvenile should be transferred, the juvenile court may consider

several factors, including:

       •   the experiences and character of the juvenile before and after commitment to
           TJJD;

       •   the nature of the offense the juvenile committed and the manner in which it was
           committed;

       •   the abilities of the juvenile to contribute to society;

       •   the protection of the victim of the offense or any member of the victim’s family;

       •   the recommendations of the TJJD and the prosecutor;

       •   the best interests of the juvenile; and

       •   any other factor relevant to the issue to be decided.

TEX. FAM. CODE ANN. § 54.11(k). Although the court may consider these factors, it is not required

to consider each one, and is expressly permitted to consider relevant factors not set forth in section

54.11(k). J.J., 276 S.W.3d at 178; see TEX. FAM. CODE ANN. § 54.11(k).

       The record establishes the juvenile court looked at the evidence in light of the relevant

section 54.11(k) factors. The court noted “the good things” J.D.H.M. accomplished, but recalled

that at the time of sentencing, she warns those like J.D.H.M. with determinate sentences about

their behavior and its possible ramifications with regard to subsequent transfers to TDCJ. The

juvenile court stated it was possible J.D.H.M.’s behavior had changed simply because he realized

he was turning nineteen and he would have to come back to court with regard to a transfer to TDCJ.




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       Considering J.D.H.M.’s offense — aggravated robbery — and his extensive behavioral

issues during his time in TJJD, coupled with the recommendations from Mr. Cucolo and TJJD, we

cannot say the juvenile court abused its discretion in ordering J.D.H.M. transferred to TDCJ. Mr.

Cucolo presented evidence that J.D.H.M. was not a good candidate for even structured parole

based on his behavioral problems while at TJJD, his drug and alcohol issues, and the fact that he

had not yet fulfilled the minimum three years of his sentence. Although Dr. Covarrubias thought

that it was in J.D.H.M.’s best interest to be released into a structured parole environment based on

his recent behavioral improvements, mental stability, and academic success, the court did not find

his opinion compelling, perhaps because J.D.H.M’s recent improvement was at a time when he

knew transfer was possible.

       Clearly, there was some evidence to support the juvenile court’s decision to transfer

J.D.H.M. to TDCJ as opposed to releasing him on parole. Because there was some evidence to

support the court’s decision, we hold there was no abuse of discretion. See L.G.G., 398 S.W.3d at

855; D.L., 198 S.W.3d at 229.

                                          CONCLUSION

       Based on the foregoing, we overrule J.D.H.M.’s point of error and affirm the trial court’s

judgment.


                                                  Marialyn Barnard, Justice




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