                           NUMBER 13-18-00135-CV

                             COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI–EDINBURG


                           IN THE MATTER OF B.J.H.B.


                   On appeal from the County Court at Law
                       of San Patricio County, Texas.


                           MEMORANDUM OPINION

             Before Justices Benavides, Longoria, and Perkes
                 Memorandum Opinion by Justice Perkes

       This case involves an appeal from a juvenile court’s order requiring appellant

B.J.H.B. to non-publicly register as a sex offender. See TEX. CODE CRIM. PROC. art.

62.357(b) (authorizing appeal from an order requiring sex offender registration). By two

issues, appellant argues: (1) the evidence was legally and factually insufficient to support
the trial court’s finding; and (2) the trial court erred in failing to allow appellant to present

evidence. 1 We reverse.

                                          I.      BACKGROUND

        B.J.H.B. was born on March 18, 2000. On September 14, 2016, when B.J.H.B.

was sixteen years old, the State filed its original petition alleging that he had engaged in

delinquent conduct by committing the felony offense of sexual assault of a child when he

was fourteen years old. 2 See TEX. PENAL CODE § 22.011(a)(2)(A).

        On October 17, 2016, the trial court, sitting as a juvenile court, signed an

adjudication order, finding that B.J.H.B. had engaged in delinquent conduct. 3                           The

juvenile court placed B.J.H.B. on probation for two years, subject to various conditions,

and deferred a finding of whether sex offender registration would be required in this case.

See TEX. CODE CRIM. PROC. art. 62.352(b)(1) (allowing the juvenile court to defer a

registration decision).

        B.J.H.B. was required, in part, to: (1) participate in intensive supervision probation;

(2) abstain from any contact with the complaining witness 4; (3) maintain a minimum grade

of seventy in each class in school; (4) submit to random urinalysis testing; (5) perform

eighty hours of community service; (6) complete the Teen Intervention and Prevention


        1  In its brief, the State concurred with appellant’s arguments and requested that this Court reverse
the juvenile court’s judgment.

        2 The petition alleged that appellant “intentionally and knowingly cause[d] the penetration of the
sexual organ of [his half-sister] who was then and there younger than 14 years of age, by [appellant’s]
finger.” His half-sister was eight years old at the time of the alleged offense.
        3   B.J.H.B. was represented by counsel. B.J.H.B. waived several rights, including his right to a jury
trial, and judicially confessed to the State’s allegation of delinquency in the petition.

        4  B.J.H.B. was not permitted to reside in the same residence as his half-sister. The Texas
Department of Family and Protective Services (the Department) intervened, and B.J.H.B. was placed in
foster care.



                                                      2
Program, Parents and Children Together Program, and Aggression Replacement

Training; (7) attend counseling; (8) undergo a polygraph examination; and (9) abide by a

curfew and all GPS monitoring restraints.

       Following the State’s submitted motion and request for judgment “requiring

[B.J.H.B.] to register as a sex offender or excuse registration,” the court held a registration

determination hearing on March 1, 2018. See TEX. CODE CRIM. PROC. art. 62.351(b)

(providing that the burden is on the juvenile at a registration determination hearing).

       Although the juvenile carried the burden, the State was asked to proceed first.

See id. Gloria Tanguma, B.J.H.B.’s juvenile probation officer, testified that B.J.H.B. had

been placed at Pegasus School, a school for adjudicated juveniles, and B.J.H.B. had

been successfully discharged from the program. B.J.H.B. completed all of his programs

and therapy, passed his classes and a polygraph exam, reported as required, and was

overall “doing very well.” There were no probationary violations reported or concerns of

reoffending risks articulated. However, Taguma testified it was probation’s policy to

“always recommend that [juvenile offenders] be registered as sex offenders” irrespective

of a juvenile’s individual successes.

       The State also called B.J.H.B. to testify. B.J.H.B., seventeen years old and living

in a foster home with other adjudicated sex offenders at the time of the hearing, briefly

testified to his own history of sexual and physical abuse. 5 B.J.H.B. also spoke about his

progress and hopes to voluntarily remain in foster care after he turned eighteen.

B.J.H.B. said he understood that remaining in foster care would subject him to the



       5  B.J.H.B. stated he was sexually abused when he was five years old. He was also the recipient
of physical abuse at the hands of his step-father up until B.J.H.B. was removed from the home in 2016.



                                                  3
Department’s rules and continued monitoring long after his probation expired, 6 but he

reasoned that this decision would provide him with the structure and financial support that

he would not otherwise have to pursue a “career as a welder” and “get [his] associate’s

degree.”

       The court then asked B.J.H.B. to discuss the underlying offense and victim,

inquiring into what B.J.H.B. disclosed during the polygraph exam and whether there were

any other children that B.J.H.B. had reported “sexual contact with.” B.J.H.B. testified that

he had inappropriately touched twenty-two other children. According to B.J.H.B., the

other children were “the same age” as he was, and the “sexual contact” occurred when

B.J.H.B. was between the ages of eight and ten. B.J.H.B. reiterated that his therapy has

had a “positive impact in [his] life,” changing him “mentally and emotionally,” and he urged

the court to consider a registration exemption.

       B.J.H.B.’s attorney requested to call B.J.H.B.’s caseworker, B.J.H.B.’s mother, and

an individual from B.J.H.B.’s current placement at the Burke Center for Youth to testify on

B.J.H.B.’s behalf. The juvenile court did not permit testimony from any of B.J.H.B.’s

witnesses.

       The State and B.J.H.B.’s attorney provided a joint recommendation, shared by

B.J.H.B.’s treatment team, that B.J.H.B. be exempt from registration. The juvenile court

maintained, given the number of children that had been “exposed to inappropriate

behavior” by B.J.H.B., the court could not “in good conscience” find exemption from

registration appropriate. The court ordered sex offender registration for a period of ten

years and made the following written findings:


       6   B.J.H.B.’s probation was set to expire that same month.



                                                    4
       1.     The interests of the public do not require public registration under
              Chapter 62 of the Texas Code of Criminal Procedure; and

       2.     The protection of the public would not be increased by public
              registration of the Respondent under Chapter 62 of the Texas of
              Criminal Procedure; or

       3.     Any potential increase in protection of the public resulting from public
              registration is clearly outweighed by any anticipated substantial harm
              to the Respondent and the Respondent’s family that would result
              from public registration under Chapter 62 of the Texas Code of
              Criminal Procedure.

       IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
       Respondent shall register as a sex offender pursuant to Chapter 62 of the
       Texas Code of Criminal Procedure; however, said registration shall be
       made nonpublic.

This appeal followed.

                               II.    STANDARD OF REVIEW

       Juvenile delinquency proceedings are generally considered civil proceedings with

quasi-criminal elements, governed by the Texas Family Code.            See In re Hall, 286

S.W.3d 925, 927 (Tex. 2009); TEX. FAM. CODE ANN. § 54.0405 (discussing juvenile

probationary requirements in sex offenses).           Juvenile sex offender registration

proceedings, however, are specifically governed by chapter 62 of the Texas Code of

Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 62.351; In re J.D.G., 141

S.W.3d 319, 321 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.).

       In an appeal from an order requiring sex-offender registration, our standard of

review “is whether the juvenile court committed procedural error or abused its discretion

in requiring registration.”   TEX. CODE CRIM. PROC. ANN. art. 62.357(b).            Further,

challenges to the legal and factual sufficiency of the evidence are subsumed in the abuse

of discretion analysis. See In re L.L., Jr., 408 S.W.3d 383, 385 (Tex. App.—El Paso




                                             5
2011, no pet.). A trial court abuses its discretion if “it acts arbitrarily, without regard to

any guiding rules and principles.” In re Dunsmore, 562 S.W.3d 732, 733 (Tex. App.—

Houston [1st Dist.] 2018, no pet.) (citing Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985)).

                              III.   APPLICABLE LAW & ANALYSIS

       B.J.H.B. and the State argue that B.J.H.B. should not have been ordered to

register because (1) the evidence was legally and factually insufficient to support the

court’s finding that registration was in the public’s interest, and (2) the court erred in

disallowing B.J.H.B. to produce evidence, thereby committing a violation of B.J.H.B.’s due

process rights. Because the second issue is subsumed in an analysis of the first, we

address the issues jointly.

       A juvenile court is permitted to defer its decision “to require, or exempt the

respondent from, registration.” TEX. CODE CRIM. PRO. ANN. art. 62.352(c). However,

once the respondent successfully completes sex offender treatment, “the respondent is

exempted from registration under this chapter unless a hearing under this subchapter

[62.351] is held on motion of the prosecuting attorney, regardless of whether the

respondent is 18 years of age or older, and the court determines the interests of the public

require registration.” Id. (emphasis added). Moreover, “[t]he hearing is without a jury

and the burden of persuasion is on the respondent to show by a preponderance of

evidence that the criteria of Article 62.352(a) have been met.” TEX. CODE CRIM. PRO.

ANN. art. 62.351(b). Article 62.352(a) requires evidence (1) that the protection of the

public would not be increased by registration of the respondent under this chapter; or (2)

that any potential increase in protection of the public resulting from registration of the




                                              6
respondent is clearly outweighed by the anticipated substantial harm to the respondent.

Id. art. 62.352(a)(1–2).   In other words, should a respondent successfully complete

treatment and the State nonetheless requests a registration determination, the

respondent then carries the burden in a registration determination hearing to prove that

an exception is warranted. See id.

       It is undisputed that (1) B.J.H.B. successfully completed sex offender treatment,

(2) the determination hearing was held on the State’s motion, and (3) B.J.H.B. was not

permitted to produce evidence to shoulder his burden of proving by a preponderance of

the evidence that he was exempt from registration. See TEX. CODE CRIM. PRO. ANN. art.

62.351(b); id. art. 62.352(c).

       B.J.H.B. argues the juvenile court’s disallowance of evidence on his own behalf

was in violation of his Fifth and Fourteenth Amendment due process rights.

Understanding that the United State Supreme Court and Texas Supreme Court’s prior

applications of constitutional protections to juveniles in juvenile court proceedings have

been tenuous and nuanced, we find it unnecessary to comment on whether this

disallowance amounts to a violation of a constitutionally protected right. See McKeiver

v. Pennsylvania, 403 U.S. 528, 541–50 (1971) (delineating which constitutional

protections apply to juveniles in juvenile court proceedings and evaluating whether and

to what degree each constitutional protection extends to juvenile proceedings); but see

Hidalgo v. State, 983 S.W.2d 746, 752 (Tex. Crim. App. 1999) (observing that the

legislatives’ “mandated the use of the Texas Rules of Criminal Evidence and the

evidentiary provisions . . . of the Code of Criminal Procedure instead of their civil

counterparts for judicial proceedings involving juveniles” are but some examples of




                                            7
“recent legislative changes [which] continue to erode the original justifications for denying

juveniles the same procedural protections as adults”) (internal citations omitted).

Instead, we find the juvenile court abused its discretion by prohibiting B.J.H.B. from

presenting evidence—a burden and right conferred unequivocally by statute. See TEX.

CODE CRIM. PRO. ANN. art. 62.351(b).

       While the legislature intended to subject juveniles adjudicated for sexually-related

offenses to the mandates of sex offender registration and notification provisions, the

legislature also provided juveniles with an avenue for exemption from registration. See

id. B.J.H.B., as the respondent seeking exemption, was statutorily burdened with the

responsibility of “show[ing] by a preponderance of evidence that the criteria of Article

62.352(a) [had] been met,” see id., which necessitates evidence that “the protection of

the public would not be increased by registration of the respondent” or “that any potential

increase in protection of the public resulting from registration of the respondent is clearly

outweighed by the anticipated substantial harm to the respondent.” Id. art. 62.352(a)(1–

2). The juvenile court’s refusal to allow B.J.H.B. to put on any witness testimony chilled

B.J.H.B.’s ability to present any article 62.352(a) evidence. Because it is axiomatic in

our jurisprudence that the party with the burden of proof be allowed to introduce some

evidence, see generally JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 164–65 (Tex.

2015), the juvenile court’s failure to allow any evidence from B.J.H.B. was, at minimum,

without regard to guiding rules and therefore, an abuse of discretion. See TEX. CODE

CRIM. PROC. ANN. art. 62.357(b); In re Dunsmore, 562 S.W.3d at 733.

       Moreover, because the juvenile court abused its discretion in making its

determination without consideration of the statutory requirement, see TEX. CODE CRIM.




                                             8
PROC. ANN. art. 62.351(b)(1)–(4), the subsequent judgment cannot be said to have been

proper. 7 See In re Hall, 286 S.W.3d at 927; see also TEX. R. APP. P. 44.1(a)(1) (providing

that judgment may be reversed where trial court “probably caused the rendition of an

improper judgment”). We sustain appellant’s dispositive second issue and find reversal

appropriate. See In re L.L., Jr., 408 S.W.3d at 385.

                                           IV. CONCLUSION

        We reverse the trial court’s judgment and remand the case for further proceedings

consistent with this opinion.

                                                            GREGORY T. PERKES
                                                            Justice

Delivered and filed the
14th day of November, 2019.




        7  We remain unpersuaded by B.J.H.B. and the State’s arguments that there was no evidence
presented to support a finding that the interests of the public warranted registration. See generally TEX.
CODE CRIM. PROC. ANN. art. 62.351(a)(1–2). However, our disagreement is limited to the extent that the
court was permitted to consider B.J.H.B.’s statements regarding his “sexual contact” with twenty-two other
children. See, e.g., In re L.L., Jr., 408 S.W.3d 383, 385 (Tex. App.—El Paso 2011, no pet.) (permitting the
juvenile court’s consideration of a juvenile’s polygraph-related disclosure that he had “engaged in
inappropriate sexual behaviors with a total of twenty-nine persons, both male and female, and of those,
fourteen were family members” for purposes of the “interests of the public element”). We, however,
provide no comment regarding the weight of this particular evidence, finding an independent analysis of
legal and factual sufficiency unnecessary. See TEX. R. APP. P. 47.1; see also In re R.A., 465 S.W.3d 728,
742 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (“Under an abuse-of-discretion standard, legal and
factual insufficiency are not independent grounds of error.”).



                                                    9
