      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00023-CV



                                     In the Matter of S. A. M.


            FROM COUNTY COURT AT LAW NO. 1 OF CALDWELL COUNTY
         NO. 2321-12CC, HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The State filed a petition alleging that appellant S.A.M., who was fifteen years old

at the time of the offense, had committed the offense of aggravated sexual assault of a child. See

Tex. Penal Code § 22.021 (aggravated sexual assault); Tex. Fam. Code § 53.012 (prosecuting

attorney shall review allegations of delinquent conduct and may file petition requesting adjudication

of child). About eight months later, the trial court signed an order finding that S.A.M. had engaged

in the alleged delinquent conduct. See Tex. Fam. Code § 54.04 (disposition hearing and order). The

court determined that S.A.M. was in need of placement outside of his home, placed him on probation

until he turned eighteen, and deferred a decision regarding whether he should be exempt from sex-

offender registration requirements until after he had completed treatment. See Tex. Code Crim.

Proc. art. 62.351 (determining whether juvenile is exempt from sex-offender registration).

               About five months later, the State filed a motion to modify, alleging that S.A.M. had

violated the terms of his probation by being discharged unsuccessfully from his residential treatment

center due to “treatment failure, creating an unsafe environment, and dishonesty in therapy in the Sex
Offender Treatment Program,” and delivering a dangerous drug to another resident of the treatment

center. The State also filed a motion to require S.A.M. to register as a sex offender. The trial court

modified S.A.M.’s disposition, committing him to the Texas Juvenile Justice Department for an

indeterminate amount of time, and ordered S.A.M. to register as a sex offender. See generally id.

arts. 62.001-.408 (governing sex-offender registration). On appeal, S.A.M. argues that the trial court

erred in admitting two of the State’s exhibits because they contained inadmissible hearsay and there

was a lack of trustworthiness in the method or circumstances of their preparation. We affirm the

trial court’s judgment.

                During the hearing on the State’s motion to modify S.A.M.’s disposition, the State

offered a report by Kim Frueh, a therapist at the residential treatment center (Exhibit 1), and a packet

of twenty-eight incident reports (Exhibit 7) prepared by various staff members of the center.

Exhibit 1 was offered during testimony by Marty Litchfield, another therapist at the center, and

S.A.M. objected that the exhibit contained hearsay and was not prepared by Litchfield. S.A.M. also

objected to the report being offered as a business record, asserting that they had not been presented

on file, see Tex. R. Evid. 902(10) (business records are admissible if kept in regular course of

business, accompanied by affidavit, and “filed with the clerk of the court for inclusion with the

papers in the cause . . . at least fourteen days prior to the day upon which trial of said cause

commences”), they lacked a proper foundation, and Litchfield was not the treatment center’s keeper

of business records. Exhibit 7 was offered during testimony by Joe Ramirez, S.A.M.’s case manager

at the center, and S.A.M. objected on the basis of hearsay and because Ramirez had not filled out

the reports and was not the center’s keeper of business records. Both times, the trial court overruled

S.A.M.’s objections and admitted the exhibits.

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                We will assume without deciding that the reports were admitted in error because,

based on this record, we have a fair assurance that S.A.M. was not harmed by their admission. The

erroneous admission of evidence is non-constitutional error subject to harm analysis under

rule 44.2(b) of the rules of appellate procedure. Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim.

App. 2008); Campos v. State, 317 S.W.3d 768, 779 (Tex. App.—Houston [1st Dist.] 2010, pet ref’d)

(citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)); see Tex. R. App. P. 44.2(b)

(error that does not affect “substantial rights” shall be disregarded). We will affirm the conviction

if, in light of the entire record, we have “fair assurance” that the error did not influence the trial court

or had at most a slight effect. Taylor, 268 S.W.3d at 592.

                Exhibit 1 is a one-page document entitled, “Tejas 30 Day Progress Report.” In it,

S.A.M. rated his group participation, overall progress, level of deviant sexual thoughts, thinking

errors, areas needing improvement, and the like. He also stated he had six days off the “Positive

Peer List” because of fighting. Frueh added her own assessment, agreeing with S.A.M.’s fairly

positive assessments of his progress and participation but stating that he had a “guarded” prognosis

due to his ongoing impulsive behavior, lack of accountability, secret keeping, deviant fantasy, and

use of intimidation or threats. She stated that although S.A.M. said he was ready to take a polygraph,

she was “concerned about whether he’ll pass.” Exhibit 7 is a packet of 28 Incident Reports completed

by the center’s staff members.1


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           The reported incidents included: whistling and talking during “noise out” and disregarding
staff instructions to stop; refusing to follow staff directions; being passive aggressive in response to
staff instructions; improperly giving another resident his shoe laces; needing his asthma inhaler when
he had an ache in his chest; throwing a football at a peer; twice getting in fights with peers;
possessing fairly inconsequential items of contraband; not being allowed to take a phone call from

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               In addition to the two disputed exhibits, the State also introduced:

•      Another progress report by Litchfield and another therapist, prepared one month after Frueh’s
       report (and about three weeks before S.A.M.’s discharge from the center). This report was
       significantly more negative and noted that S.A.M. engaged in “blaming and minimizing,”
       gave an “inconclusive” polygraph, and was unprepared and uncooperative in therapy.

•      A discharge summary prepared by Litchfield that states that S.A.M. had been advised by his
       attorney not to discuss or make admissions about the offense, which made progress in
       therapy “very difficult,” and that even after he pled true to the allegations, he denied them
       and had an inconclusive polygraph test. Litchfield also stated that S.A.M. often came to
       therapy unprepared, refused to accept responsibility for the offense, and “demonstrated
       a number of problems that have been documented in over 60 Incident Reports,” including
       refusing to complete therapy assignments, fighting, providing medication to a peer,
       possessing contraband, damaging property, and assaulting his peers. Litchfield recommended
       that S.A.M. (1) be discharged to continue treatment in a “more restrictive setting that can
       better handle his aggression and assaultive behaviors” and (2) be required to register as a sex
       offender due to his refusal to take responsibility for the offense and his continuing aggression
       toward others.

•      Ramirez’s discharge summary stating that S.A.M. was discharged because of an inconclusive
       polygraph, over 60 incident reports, and giving medication to a peer. Ramirez concluded
       that S.A.M. had created an unsafe environment for himself, his peers, and staff and was
       unwilling to be honest with staff members.

               Litchfield testified that S.A.M. did not make progress in treatment, came to group

therapy unprepared, and was involved in numerous incidents. He said that even in the center’s very

controlled environment, S.A.M. was able to endanger his peers, and he believed S.A.M. posed a

danger to the public and should be required to register as a sex offender. Ramirez testified about the




his mother due to center rules governing when a resident may receive a phone call; telling his mother
that a staff member had restrained him by choking him, putting his knee on S.A.M.’s throat, and
twisting S.A.M.’s arm (that staff member was fired for violating center procedures and not using
“prudent judgment” in restraining S.A.M.); reporting that he felt dizzy and “weird” and being given
water by the responding staff member; passing a silly note to a peer; repeatedly neglecting his
therapy and disregarding instructions to work during therapy time; and giving his psychotropic
medication to a peer.

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incident reports and said that although he was never personally involved in one of the rule-breaking

incidents, he would interact with S.A.M. within a few days after each incident. He said S.A.M.

never showed significant remorse for any of the incidents and usually said he would try to do better.

Ramirez said S.A.M.’s “behavior was up and down. . . . [H]e kind of had a cycle of he would

maintain for a while then he would mess up again.” Ramirez also said that neglect of therapy raised

a red flag for the treatment center and its staff. Finally, Keith Bradbury, administrator of the treatment

center, testified that S.A.M. was discharged from the program because he gave psychotropic

medication to another resident and was not truthful in his therapy.

                S.A.M. testified and admitted that he gave one of his medications to a fellow resident,

saying he did not know he was giving the other child a dangerous drug and that he thought he was

giving the resident “something that he already had before.” He denied the validity of the incident

reports, saying that the staff was sneaky and disrespectful, the reports were unjustified, and, “I would

barely do anything over there to get in trouble and I’d still wind up getting in trouble.”

                Almost all of the information contained in the reports, certainly about the most

serious and damaging allegations, was provided through testimony (Litchfield, Ramirez, Bradbury,

and S.A.M. himself) and the State’s other exhibits. S.A.M. argues that harm is indicated by the trial

court’s referring to the incident reports as evidence that S.A.M. was not willing to follow the rules

of the treatment center, but in light of all of the court’s remarks and the overall weight of the

evidence, we conclude that the disputed exhibits had little, if any, effect on the trial court’s decision

to modify S.A.M.’s disposition and order him to register as a sex offender. See id. We overrule

S.A.M.’s issues and affirm the trial court’s judgment.



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                                           __________________________________________

                                           David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: September 11, 2014




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