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                                  MEMORANDUM OPINION

                                         No. 04-08-00854-CV

                                   IN THE MATTER OF C.E.F.W.

                      From the 386th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2004-JUV-02056
                               Honorable Laura Parker, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: September 2, 2009

AFFIRMED

           C.E.F.W., a juvenile, appeals the trial court’s order transferring him from the Texas Youth

Commission (TYC) to the Institutional Division of the Texas Department of Criminal Justice

(TDCJ) to serve the remainder of his forty-year determinate sentence. In his sole issue, C.E.F.W.

contends the trial court abused its discretion in ordering the transfer. We affirm the order of the trial

court.

                                                BACKGROUND

           At the age of thirteen, C.E.F.W. was charged with two counts of aggravated sexual assault

for the brutal beating and rape of a 62 year-old woman in an assisted living facility. The case was
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tried to a jury, who found that C.E.F.W. engaged in delinquent conduct and recommended that he

be committed to TYC for a determinate sentence of forty years. The trial court adjudicated C.E.F.W.

delinquent and ordered him committed to TYC for a determinate sentence of 40 years, with possible

transfer to TDCJ. The trial court subsequently conducted a hearing based on TYC’s request that

C.E.F.W. be transferred from TYC to TDCJ. At the hearing, TYC court liaison Leonard Cucolo

recommended that C.E.F.W. be transferred to TDCJ to complete the remainder of his 40-year

sentence. Cucolo testified that while C.E.F.W. was classified as a priority I sex offender, he failed

to enter the sex offender treatment program because his aggressive and disruptive behaviors

prevented him from qualifying for specialized treatment. During C.E.F.W.’s time at TYC, he had

331 documented incidents, 40 of which were in the more serious category I. While there were

periods during which C.E.F.W. was able to control his behavior, Cucolo testified that it was when

significant attempts were made to get C.E.F.W. to engage in treatment that his behavior became

especially disruptive. Cucolo also noted that C.E.F.W. was aware of the consequences of his refusal

to adjust his behavior and participate in his treatment program, including the possibility of transfer.

Further, C.E.F.W. often refused to attend individual and group therapy sessions, which prevented

him from progressing in correctional therapy. Finally, Cucolo testified that if C.E.F.W were to be

returned to TYC, he would be returned to the Giddings State School, where he would participate in

basically the same treatment he had already been offered.

       TYC psychologist Dr. Bradley Norlander also testified at the transfer hearing. He stated that

although the TYC Special Services Committee initially recommended that C.E.F.W. be transferred

to TDCJ, he recommended that C.E.F.W. be given a second chance. TYC then assigned C.E.F.W.

a new case manager, moved him into a new dorm, and adjusted his medication. However, C.E.F.W.



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failed to make sufficient progress in his treatment and continued to have serious behavior problems,

including gang-related incidents and dangerous behavior toward others. He often slept in class and

required frequent interventions from staff in attempts to persuade him to do his work. Further,

C.E.F.W. refused to talk about personal issues or participate in therapy, including both group and

individual therapy, preventing him from making progress in the correctional therapy program. Dr.

Norlander subsequently re-evaluated C.E.F.W. and recommended that he be transferred to TDCJ.

       Dr. Nicholas Carrasco, a private-practice psychologist who evaluated C.E.F.W. and did

contract work for TYC, testified on C.E.F.W.’s behalf. Dr. Carrasco stated that TYC’s failure to

treat C.E.F.W. for his anger issues is what prevented C.E.F.W. from qualifying for the sex offender

treatment program. Dr. Carrasco further opined that C.E.F.W. is at high risk to assault someone in

the near future. He stated the chances of C.E.F.W. getting the treatment he needed in TDCJ were

slim given that there are 30,000 sex offenders in the State prison and 600 slots for treatment.

Without such treatment, Dr. Carrasco believed C.E.F.W. posed a high risk to the community upon

his eventual release from prison. Dr. Carrasco recommended that the trial court deny the request to

transfer C.E.F.W. to the adult prison system.

       At the conclusion of the hearing, the trial court ordered that C.E.F.W. be transferred to TDCJ

to complete the remainder of his 40-year sentence. On appeal, C.E.F.W. argues that the trial court

abused its discretion in transferring him from TYC to TDCJ because the resources available in TYC

to rehabilitate him are not available in TDCJ, and should he be transferred to TDCJ without proper

rehabilitation, he will be a risk to society upon his eventual release.




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                                             DISCUSSION

        We review a trial court’s decision to transfer a juvenile from TYC to TDCJ under an abuse

of discretion standard. In re J.M.O., 980 S.W.2d 811, 812-13 (Tex. App.—San Antonio 1998, pet.

denied). The appellate court must review the “entire record to determine if the trial court acted

without reference to any guiding rules and in an arbitrary manner.” Id. at 813. As long as “some

evidence exists to support the trial court’s decision,” there is no abuse of discretion. Id.; In re R.G.,

994 S.W.2d 309, 312 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). The appellate court may

not reverse the trial court’s decision for abuse of discretion simply because it disagrees with the

decision. In re R.G., 994 S.W.2d at 312.

        In determining whether a juvenile should be transferred from TYC to TDCJ, the trial court

may consider the following factors:

        the experiences and character of the person before and after commitment to the youth
        commission, the nature of the penal offense 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.

TEX . FAM . CODE ANN . § 54.11(k) (Vernon 2008). The trial court need not consider every factor, and

evidence of each factor is not required. In re J.L.C., 160 S.W.3d 312, 313-14 (Tex. App.—Dallas

2005, no pet.); In re R.G., 994 S.W.2d at 312. Additionally, the trial court may assign different

weights to the factors that it considers, and it may consider other relevant factors not listed in the

statute. In re J.L.C., 160 S.W.3d at 314; In re R.G., 994 S.W.2d at 312. As long as the trial court’s

decision in consideration of these factors is within its discretionary authority, there is no abuse of

discretion. In re R.G., 994 S.W.2d at 312.




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        C.E.F.W. contends that the trial court abused its discretion in failing to consider one of the

explicit factors listed in section 54.11(k): “the abilities of the person to contribute to society.” TEX .

FAM . CODE ANN . § 54.11(k). He argues that by implication this factor includes the risk the person

poses to society upon his release. C.E.F.W. maintains that the reason he was unable to reach

threshold levels in academics, behavior, and correctional therapy is because TYC never properly

addressed his issues with anger through an anger management program. He contends that his

inability to control his anger greatly contributed to his behavior problems, which prevented him from

progressing in the resocialization program, which in turn prevented him from entering the sex

offender treatment program. He further contends that without this specialized treatment, he will be

a danger to society upon his release. Thus, C.E.F.W. argues that he should have been remanded back

to TYC for proper anger management therapy, so that he may achieve threshold levels for entering

sex offender treatment.

        We disagree with C.E.F.W.’s contention that because he would benefit from more

rehabilitative treatment, the trial court should have denied the transfer request. Under section 54.11,

the trial court has no duty to ascertain that TYC has adequately attempted to rehabilitate the juvenile,

but only determines whether to transfer the juvenile to TDCJ, release him under supervision,

discharge him, or recommit him to TYC. TEX . FAM . CODE ANN . § 54.11 (Vernon 2008); In re

J.R.W., 879 S.W.2d 254, 258 (Tex. App.—Dallas 1994, no writ). Based on this record, we cannot

conclude the trial court abused its discretion in ordering that C.E.F.W. be transferred to TDCJ. The

underlying offense for which C.E.F.W. was adjudicated delinquent was particularly egregious and

extremely violent. C.E.F.W. also had a prior juvenile record of offenses, including misdemeanor

assault and contempt of court cases. Additionally, the record indicates that C.E.F.W. continued a



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pattern of disruptive and aggressive behavior while at TYC, despite TYC’s efforts to assist him in

controlling and adjusting his behavior. Testimony at the transfer hearing indicates that C.E.F.W. was

informed that transfer to TDCJ was a consequence of continuing his disruptive behavior, and he was

even given a second chance to respond to treatment programs before a transfer request was made by

TYC. C.E.F.W. made no additional progress after being given this second chance, and the evidence

indicates that were he to be returned to TYC, his treatment program would not substantially change.

       After reviewing the record in light of the factors set forth in section 54.11(k) of the Family

Code, there is clearly some evidence to support the transfer. See In re R.G., 994 S.W.2d at 312-13.

The trial court stated that its decision was based primarily on “the serious and egregious nature of

his committing offense and the fact that he has failed to follow the rules at TYC while knowing what

the consequences were . . . and that he has failed to engage in treatment having been offered the

opportunity numerous times.” There is ample evidence in the record to support this reasoning.

Therefore, the trial court did not abuse its discretion in ordering that C.E.F.W. be transferred to

TDCJ for the remainder of his sentence. See In re J.M.O., 980 S.W.2d at 813. C.E.F.W.’s sole issue

on appeal is overruled, and the order of the trial court is affirmed.



                                                        Phylis J. Speedlin, Justice




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