                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00326-CV

                                     IN THE MATTER OF L.C.

                     From the 289th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2010-JUV-01182
                            Honorable Carmen Kelsey, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: April 3, 2013

AFFIRMED

           L.C. appeals the trial court’s order transferring him from the Texas Juvenile Justice

Department (TJJD) to the Texas Department of Criminal Justice (TDCJ). L.C. asserts that the

trial court abused its discretion in ordering his transfer to the TDCJ to serve the remainder of his

sentence because there was insufficient evidence that he posed a continuing threat to the

community. We affirm the trial court’s order.

                                            BACKGROUND

           In 2010, L.C. was arrested after shooting Officer Matthew Martin, an officer with the San

Antonio Police Department. At the conclusion of L.C.’s trial, a jury found that L.C. engaged in

delinquent conduct by committing the offenses of aggravated assault against a public servant

with a deadly weapon and deadly conduct, and assessed forty-year and ten-year determinate
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sentences, respectively. Under these determinate sentences, L.C. entered the TJJD with the

possibility of later being transferred to the TDCJ to finish serving his sentence. In May of 2012,

with L.C.’s nineteenth birthday approaching, the trial court held a transfer hearing to determine

whether L.C. should be released on parole or transferred to the TDCJ for the remainder of his

sentence. The State called one witness to testify at the hearing, and L.C. called three witnesses.

       Most of the testimony, even from the State’s witness, was favorable to L.C. For example,

there was testimony that L.C. had successfully completed several programs and group therapy

sessions, including a drug and alcohol program and Aggression Replacement Training (ART).

Additionally, multiple witnesses discussed L.C.’s academic efforts during his nineteen months at

the TJJD, despite his inability to pass the test for his GED, as well as his elected role as student

council president. Two TJJD staff members testified that L.C. demonstrated good behavior and

often volunteered to mentor other youths and help staff. Further, many of the witnesses testified

that they believed L.C. had accepted responsibility for the crimes and felt true empathy for the

victim. The court liaison for the TJJD expressed TJJD’s recommendation that L.C. be released

under supervision for the remainder of his sentence. Many witnesses also expressed L.C.’s plans

for a brighter future and desire to mentor children from his community.

       Nonetheless, the record also contains testimony that is unfavorable to L.C. For instance,

several witnesses acknowledged L.C.’s delinquent record prior to the offenses at issue, including

several offenses dating back to 2005. The record also reveals that L.C. was a gang member prior

to his detention. Additionally, every witness recognized the serious and violent nature of the

offenses L.C. committed against Officer Martin. Finally, TJJD staff members testified that there

were fifteen reported behavioral incidents involving L.C.; some were aggressive in nature, and

three were reported within the six months preceding the transfer hearing.



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       An issue of concern to the trial court was whether L.C. had accepted responsibility for the

crimes. Although the witnesses testified that they believed L.C. accepted responsibility, all but

one witness failed to convey any statement made by L.C. indicating his acceptance of shooting

Officer Martin. In fact, two witnesses specifically stated that L.C. told them that he was not the

person who shot Officer Martin. One TJJD staff member, who testified that L.C. seemed to

genuinely accept responsibility for the crimes and express empathy for the victim, only promoted

L.C. to the next stage of rehabilitation because L.C. convinced her that he accepted responsibility

for the crimes. The trial court was also concerned that, although the minimum length of time

someone must ordinarily serve for the crime of aggravated assault against a public servant is

three years, L.C. had served only nineteen months of his sentence.

       After both parties rested, the complainant, Officer Martin, made an impact statement to

the court. In his statement, Officer Martin focused heavily on L.C.’s failed efforts to obtain his

GED.     Officer Martin also discussed the fact that gang violence increased in L.C.’s

neighborhood since L.C. was detained. He was concerned that it would be difficult for L.C. to

avoid involvement with gangs given his previous history as a gang member and the violent

nature of the offenses he committed against Officer Martin when he was only sixteen years old.

In addition, Officer Martin stated that he had received numerous death threats, some apparently

in relation to this case, and that he fears for his safety and the safety of his family at all times.

Following Officer Martin’s statement, both parties made closing arguments. After hearing the

parties’ evidence and arguments, the trial court ordered L.C. to be transferred to the TDCJ to

serve the remainder of his sentence.




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                               TRANSFER FROM TJJD TO TDCJ

A. Standard of Review

       A trial court’s decision to transfer a juvenile from TJJD to TDCJ is reviewed for an abuse

of discretion. In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006, pet. denied); In

re J.D.P., 149 S.W.3d 790, 792 (Tex. App.—Fort Worth 2004, no pet.). In determining whether

the trial court abused its discretion, we review the entire record to determine if the trial court

acted arbitrarily, unreasonably, or without reference to any guiding principles or rules. In re

D.L., 198 S.W.3d at 229; In re J.L.C., 160 S.W.3d 312, 313 (Tex. App.—Dallas 2005, no pet.).

“The trial court’s decision will be upheld if the record contains some evidence to support it.” In

re N.K.M., 387 S.W.3d 859, 864 (Tex. App.—San Antonio 2012, no pet.); In re D.L., 198

S.W.3d at 229.

B. Texas Family Code

       Prior to reaching the age of nineteen, a determination must be made whether a juvenile

serving a determinate sentence will be released under supervision or transferred to the TDCJ to

complete his sentence. Act of May 5, 2011, 82d Leg., R.S., ch. 85, § 1.007, 2011 Tex. Sess. Law

Serv. 366, 420 (West) (codified as amended at TEX. HUM. RES. CODE ANN. § 245.051 (West

Supp. 2012)) (redesignating and amending former TEX. HUM. RES. CODE ANN. § 61.081). If the

TJJD recommends release of a juvenile who was sentenced for a felony of the first degree and

who

has not served at least three years in the TJJD, the court must hold a hearing to determine

whether the juvenile should be released under supervision or transferred to the TDCJ. Id.

§ 245.051(c)(2); TEX. FAM. CODE ANN. § 54.11(a) (West Supp. 2012). After evidence has been

presented and the hearing has concluded, the trial court may order the return of the juvenile to

TJJD with or without approval for release under supervision. TEX. FAM. CODE ANN. § 54.11(j).
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       When conducting a transfer hearing, a trial court may consider written reports provided

by “probation officers, professional court employees, professional consultants, or employees of

the [Texas Juvenile Justice Department],” as well as the testimony of witnesses. Id. § 54.11(d).

Additionally, when making a decision whether to approve the TJJD’s recommendation for

release under supervision, the court may take into account

       [1] the experiences and character of the person before and after commitment to
       the [TJJD], [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 the
       [TJJD] and prosecuting attorney, [6] the best interests of the person, and [7] any
       other factor relevant to the issue to be decided.

Id. § 54.11(k). The court is not obliged to consider all of the factors listed, and it may consider

relevant factors not listed. In re N.K.M., 387 S.W.3d at 864; In re J.J., 276 S.W.3d 171, 178

(Tex. App.—Austin 2008, pet. denied). Additionally, the court can assign differing weights to

the factors considered. In re N.K.M., 387 S.W.3d at 864; In re J.J., 276 S.W.3d at 178.

C. Analysis

       In this case, the trial court heard four witnesses and was provided multiple reports and

exhibits for consideration. Both favorable and unfavorable evidence was presented. In its Order

of Transfer, the trial court stated it took into consideration the seven factors listed in the Family

Code. See TEX. FAM. CODE ANN. § 54.11(k). The court also found that L.C. was of “sufficient

intellectual abilities and sophistication to be committed at the Institutional Division of the Texas

Department of Criminal Justice.” In making its determination, the trial court reviewed the

witnesses’ testimony and reports provided by the TJJD. Ultimately, the trial court found that it

was “in the best interest[s] of [L.C.] and of society that [L.C.] be placed in the custody of the

[TDCJ] for the remainder of his . . . sentence.”



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       Although L.C. presented favorable testimony regarding his behavior while committed to

the TJJD, his academic efforts, his future goals, his acceptance of responsibility for the crimes,

and his completion of multiple treatment programs, the record also contains evidence of

misbehavior while detained, failure to obtain his GED, and his prior criminal history.

Additionally, throughout the hearing, the trial court appeared to place emphasis on the length of

the sentences assessed by the jury, the fact that L.C. had not even served the minimum time

ordinarily required for one of the offenses he had committed, and the seriousness of the crimes.

Indeed, when announcing its decision, the court stated: “[T]he seriousness of the offense is such

that I would be derelict in my duties to put this young man on parole.” The trial court also

appeared to question the witnesses’ testimony that L.C. accepted responsibility for the crimes.

L.C. gave conflicting statements about his role in the crimes up to a day before the hearing, and

the only witness who could affirmatively convey a statement in which L.C. accepted

responsibility was the same person who controlled the fate of his progression in treatment. The

trial court also considered the protection of Officer Martin and his family, including Officer

Martin’s statement that he received numerous death threats from L.C.’s previous gang. The trial

court was permitted to assign varying amounts of weight to the evidence, as well as believe or

disbelieve the witnesses’ testimony. See In re N.K.M., 387 S.W.3d at 864; see also State v. Ross,

32 S.W.3d 853, 854 (Tex. Crim. App. 2000) (explaining that the fact finder is the sole judge of

credibility of witnesses). Therefore, based on the evidence presented, there is some evidence in

the record to support the court’s decision to transfer L.C. to the TDCJ.

                                          CONCLUSION

       The trial court reviewed all of the materials available and considered every factor listed in

section 54.11(k) of the Texas Family Code. Because there is some evidence to support the



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court’s decision, we conclude the trial court did not abuse its discretion in ordering that L.C. be

transferred to the TDCJ. Accordingly, the order of the trial court is affirmed.



                                                 Patricia O. Alvarez, Justice




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