                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-431-CV


IN THE MATTER OF J.B.C.




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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  I. INTRODUCTION

     Appellant J.B.C. appeals the trial court’s order transferring him from the

custody of the Texas Youth Commission (TYC) to the Institutional Division of

the Texas Department of Criminal Justice (TDCJ) for the completion of his

forty-year determinate sentence for the offense of murder. In his sole issue,




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         … See T EX. R. A PP. P. 47.4.
J.B.C. complains that the trial court abused its discretion by transferring him to

TDCJ. We will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      A jury found that J.B.C. engaged in delinquent conduct by committing

murder. See In re J.B.C., 233 S.W.3d 88, 94 (Tex. App.—Fort Worth 2007,

pet. denied) (providing details concerning J.B.C.’s fatally shooting his maternal

grandmother in the back of the head with a .32 caliber handgun and affirming

trial court’s judgment).    The trial court sentenced J.B.C. to forty years’

confinement with TYC with a possible transfer to TDCJ.          Id.   After J.B.C.

turned eighteen years old and had spent approximately eighteen months in the

custody of TYC, upon TYC’s request, the trial court held a hearing pursuant to

section 54.11 of the family code and section 61.079(a) of the human resources

code concerning the transfer of J.B.C. to TDCJ. See Tex. Fam. Code Ann.

§ 54.11 (Vernon Supp. 2008); Tex. Hum. Res. Code Ann. § 61.079(a) (Vernon

Supp. 2008).

      At the November 20, 2007 transfer hearing, the State presented the

testimony of TYC court liaison Leonard Cucolo as well as TYC’s general file,

master file, and security file on J.B.C. Cucolo testified that there are three

categories by which J.B.C. was evaluated while at TYC—academics, behavior,

and conduct. Cucolo said that although J.B.C. had progressed well in the area

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of academics, he had progressed poorly both behaviorally and in his conduct.

Cucolo testified that J.B.C. had demonstrated “pretty serious behavior problems

in the form of an assault or aggressive behavior towards staff and students.”

Cucolo said that J.B.C. had been confined to the security unit multiple times for

being a danger to others.      He also said that J.B.C. had a pattern of being

disrespectful and verbally aggressive toward staff and students and failed to

follow instructions from TYC staff.     In all, Cucolo testified that J.B.C. had

roughly seventy documented incidents of misconduct or referrals to TYC’s

security unit. Eighteen of these referrals resulted in his removal from TYC’s

dorm.

        Cucolo also detailed a few of the incidents that led to J.B.C.’s removal

to TYC’s security unit. One such incident involved J.B.C. “hitting his peer with

a closed fist continuously” while yelling out, “White Power.” Cucolo stated

that J.B.C.’s reference to “White Power” was “gang-related.” Cucolo also said

that J.B.C. had received a variety of services at TYC, including pharmacological

intervention,   psychiatric   counseling,   medication   for   anxiety,   individual

counseling, group counseling, and staff counseling. Cucolo said that despite

these services, J.B.C. was generally disruptive and tended to blame others for

his behavioral problems.      In sum, Cucolo said that J.B.C. demonstrated an

inability to progress in his re-socialization program.

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      Jeannette Saha, a case manager for TYC who knew and had worked with

J.B.C., also testified.   She too stated that J.B.C. had progressed well

academically. Saha also stated that she believed J.B.C. had progressed both

behaviorally and in his conduct. Saha said that she believed J.B.C. benefitted

from being at TYC and that she believed specialized treatment would be of

significant benefit to him.

      Following closing arguments, the court took the case under advisement

to review the documentary evidence. After reviewing the written evidence, the

trial court advised J.B.C. of his appellate rights and ordered that J.B.C. be

transferred to TDCJ to complete his forty-year sentence. This appeal followed.

                                III. D ISCUSSION

      1.    Minimum Time Requirement

      In part of his sole issue, J.B.C. complains that the trial court abused its

discretion by ordering him transferred to TDCJ when he had only served roughly

half of his three-year minimum time requirement at TYC. We disagree.

      The three-year minimum time requirement discussed at the transfer

hearing concerns a limitation on TYC’s power to release J.B.C. on parole, rather

than a statutory minimum time requirement that J.B.C. was to stay at TYC.

See Tex. Hum. Res. Code Ann. § 61.081 (Vernon Supp. 2008) (providing TYC

“may not release the child under supervision without approval of the juvenile

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court . . . unless . . . the child has served at least . . . 3 years, if the child was

sentenced to commitment for conduct constituting . . . a felony of the first

degree.”). In this case, the minimum time before recommending a transfer from

TYC to TDCJ was six months. See 37 Tex. Admin. Code § 85.65(e)(2)(B)

(2006) (providing that TYC may request a juvenile court hearing for transfer to

TDCJ for sentenced offenders who have been convicted of a felony offense and

have spent at least six months in a high restriction facility).

      Here, it is uncontested that J.B.C. spent more than six months in a high-

restriction facility prior to TYC’s request that he be transferred to TDCJ. We

overrule this part of J.B.C.’s sole issue.

      2.     J.B.C.’s Transfer

      In the remainder of his sole issue, J.B.C. complains that the trial judge’s

decision to transfer him to TDCJ was unreasonable and arbitrary. J.B.C. argues

that the trial court abused its discretion by not allowing him to return to TYC

and be moved to a specialized dorm where he could potentially progress in the

areas of behavior and conduct. We are not persuaded by this argument.

      In reviewing the trial court’s decision to transfer J.B.C from the custody

of TYC to TDCJ, we employ an abuse of discretion standard. See In re J.D.P.,

149 S.W.3d 790, 792 (Tex. App.—Fort Worth 2004, no pet.); In re J.M.O.,

980 S.W.2d 811, 812–13 (Tex. App.—San Antonio 1998, pet. denied); K.L.M.

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v. State, 881 S.W.2d 80, 84 (Tex. App.—Dallas 1994, no writ). We are to

review the entire record to determine whether the trial court acted without

reference to any guiding rules and principles. J.D.P., 149 S.W.3d at 792. We

may not reverse a trial court’s decision merely because we disagree with that

decision, so long as the trial court acted within its discretionary authority. In

re R.G., 994 S.W.2d 309, 312 (Tex. App.—Houston [1st Dist.] 1999, pet.

denied).

      When a juvenile is given a determinate sentence, upon TYC’s request to

transfer the juvenile to TDCJ, the trial court is required to hold a hearing

pursuant to family code section 54.11. Tex. Fam. Code Ann. § 54.11; see also

Tex. Hum. Res. Code Ann. § 61.079(a). At the transfer hearing, a trial court

“may consider written reports from probation officers, professional court

employees, professional consultants, or employees of the Texas Youth

Commission, in addition to the testimony of witnesses.” Tex. Fam. Code Ann.

§ 54.11(d). At the conclusion of such a hearing, the trial court may either

order the return of the juvenile to TYC or the transfer of the juvenile to the

custody of TDCJ for the completion of the individual’s sentence.              Id.

§ 54.11(i).

      In evaluating the evidence and deciding whether to transfer a juvenile to

TDCJ, a trial court may consider the following: (1) the experiences and

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character of the person before and after commitment to TYC; (2) the nature of

the penal offense that the person was found to have committed and the manner

in which the offense was committed; (3) the abilities of the person to contribute

to society; (4) the protection of the victim of the offense or any member of the

victim’s family; (5) the recommendations of TYC and the prosecuting attorney;

(6) the best interests of the person; and (7) any other relevant factor.      Id.

§ 54.11(k). Within its discretion, the trial court may assign different weights

to the factors it considers, and the court need not consider every factor. R.G.,

994 S.W.2d at 312.

      Texas courts of appeals have determined that a trial court does not abuse

its discretion by transferring a juvenile to TDCJ even when TYC has

recommended that the juvenile be returned to TYC. See K.L.M., 881 S.W.2d

at 84–85 (upholding transfer to TDCJ where juvenile’s probation officer,

treatment supervisor, and TYC’s parole supervisor all recommended that

juvenile be recommitted to TYC’s custody); In re J.C.D., 874 S.W.2d 107,

108–09 (Tex. App.—Austin 1994, no writ) (upholding transfer to TDCJ where

TYC recommended return to TYC). Texas courts have also held that a trial

court does not abuse its discretion in transferring a juvenile to TDCJ even when

evidence suggests that the possibility of more specialized treatment would be

obtained by a juvenile’s return to TYC. See In re J.R.W. v. State, 879 S.W.2d

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254, 258 (Tex. App.—Dallas 1994, no writ) (upholding trial court’s transfer of

juvenile to TDCJ even though a state psychologist recommended that he be

sent back to TYC for participation in a specialized program); In re C.D.R., 827

S.W.2d 589, 592–93 (Tex. App.—Houston [1st Dist.] 1992, no writ) (rejecting

juvenile’s claim that he should have been returned to a TYC specialized sex

offender program). Furthermore, a trial court does not abuse its discretion if it

considers that a juvenile who has committed a violent offense, if sent back to

TYC, would be released from TYC and placed on parole once the juvenile turns

twenty-one. See Tex. Hum. Res. Code Ann. § 61.084(g) (Vernon Supp. 2008);

see also K.L.M., 881 S.W.2d at 85–86 (stating trial court could consider

consequence of sending juvenile back to TYC); see also J.R.W., 879 S.W.2d

at 258 (stating trial court has no duty to rehabilitate a juvenile, but only makes

a determination whether to transfer the juvenile to TDCJ or send the juvenile

back to TYC).

      At the transfer hearing, the trial court was aware that J.B.C. had

previously been found guilty of shooting his maternal grandmother in the back

of the head with a .32 caliber handgun. This incident resulted in his placement

at TYC. The trial court was also informed that if J.B.C. was returned to TYC,

when he turned twenty-one, he would be released from TYC and placed on

parole for the remainder of his sentence. The trial court heard evidence that

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while at TYC, J.B.C. had assaulted his peers, threatened staff members, and

continually failed to take responsibility for his actions. The evidence before the

trial court was that of the roughly seventy personal-conduct incidents reported

in his eighteen months at TYC, J.B.C. had been involved in five assaults and

seven documented incidents of danger to others and had demonstrated

participation in gang-related activity. Some of these events even occurred after

J.B.C. learned he was being reviewed for possible transfer to TDCJ.

      After a complete review of the record, and mindful that one of J.B.C.’s

case managers testified that specialized treatment would be of significant

benefit to J.B.C., we cannot say that the trial court acted without reference to

any guiding rules and principles in declining to send J.B.C. back to TYC and in

transferring him from TYC to TDCJ. Accordingly, we overrule the remainder of

J.B.C.’s sole issue.

                                IV. C ONCLUSION

      Having overruled J.B.C.’s sole issue, we affirm the trial court’s judgment.




                                            PER CURIAM

PANEL: HOLMAN, GARDNER, and MCCOY, JJ.

DELIVERED: October 9, 2008




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