1
F FI 1{Li;   Opinion   Filed November 7, 2() 12




                                               In The
                                 (tuirt uf 1t1rt1!i
                          Fifth Oitrirt uf ixas at DaItai3i
                                       No. 05-1 1-01469-CV


                                      IN THE MATTER OF
                                         A.C., A CHILD


                        On Appeal from the 305tI Judicial District Court
                                     Dallas County, Texas
                             Trial Court Cause No. JD-67977-X


                              MEMORANDUM OPINION
                             Before Justices Bridges, Richter. and Lang
                                      Opinion By Justice Lang

        A.C. appeals the trial court’s order transferring her from the Texas Youth Commission (TYC)

to the Texas Department of Criminal Justice (TDCJ) to complete the remainder of her determinate

five-year sentence. In her sole issue, A.C. contends the trial judge abused her discretion in ordering

A.C. transferred to the TDCJ. We issue this memorandum opinion pursuant to Texas Rule of

Appellate Procedure 47.4 because the issues are settled. See TEx. R. App. P.47.4. We affirm the trial

court’s order.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       On November 9, 2009, the trial court declared A.C. was a child engaged in delinquent

conduct for committing aggravated robbery with two adult accomplices. The trial court ordered A.C.,

who was seventeen years old at the time, committed to the TYC for a determinate sentence of five
years, with possible transfer to the TDCJ. However, the sentence was probated and A.C. was

transferred to the Rockdale Regional .Iuvcnile .Justice Center. On August 6, 2010. the trial court

fund AC. violated the conditions of her probation by failing to obey all the rules of placement and

sentenced AC. to the TYC. On September 23. 2() ii, the trial court conducted a release or transfer

hearing pursuant to section 54.11 ot the Ihmily code. See Trx. Fi. CODE ANN.             54.11 (West

2012). Evidence presented at the hearing included the TYC’s summary report of A.C.’s progress

and the testimony of a representative for the TYC, the complainant in A.C.’s offense, A.C.’s

grandmother, and AC. On September 26, 2011. the trial court ordered the transfer of A.C. to the

TDCJ to complete the remainder of her determinate sentence.

       In her sole issue on appeal, A.C. contends that the trial court abused its discretion by

rendering the transfer order. A.C. argues she made progress prior to the release/transfer hearing,

which indicated a release onto parole was the Proper result in this case. Specifically, she identified

as “progress,’ the credits she obtained toward her high school diploma, her attempt to pass the GED

test, and her completion of the Capital Offender Program and several other programs while at the

TYC.

       The State responds “[wjhen the factual record is reviewed in its entirety, it cannot fairly be

said that the trial court’s transfer decision was made without reference to any guiding rules or

principles because the record—at the very least—-contains some evidence which supports the trial

court’s decision.” (emphasis in original). The State contends the trial court’s order is supported by

the record that includes testimony of the victim of A.C.’s offense as to “the violence that [she] had

suffered as a result of the conduct of[A.C.] and her cohorts;” testimony of the TYC representative

regarding A.C.’s misconduct and likelihood to commit new offenses; and A.C.’s “own testimonial

demeanor.”




                                                —2—
                                   II. STANDARD OF REVIEW

        “We review the trial judges decision to transfer a juvenile from the TYC to the TDCJ under

an abuse otdiscretion standard.’ In reJL.C., 160 S.W.3d 312, 313 (Tex. App.—Dallas 2005. no pet.)

(citing In re TD.lJ.. 971 S.W.2d 606. 610 (Tex. App.—Dallas 199$. no pet.): JR. W v. State. 879

S.W.2d 254, 257 (Tex. App.Da1Ias 1994, no writ)). “In deciding whether the trial judge abused his

discretion, we review the entire record to determine if the judge acted without reference to any

guiding rules or principles.” Id. (citing In re T. D. H., 971 S.W.2d at 610). “If some evidence supports

the trial judge’s decision, there is no abuse of discretion.” Id. (citing In re TD.H., 971 S.W.2d at

610). “We do not substitute our decision for that of the trial judge and reverse only if the judge acted

in an unreasonable or arbitrary manner. Id. (citing In i.e T.D.H,, 971 S.W.2d at 610). “An abuse of

discretion does not exist if the trial court bases its decision on conflicting evidence and some

evidence supports the trial court’s decision.”J.R. W        i.   State, 879 S.W.2d 254,257 (Tex. App.—Dallas

1994. no writ) (citing Lice. Tele—Comme       ‘ii   Sv.ss. Inc.    i’.   Buclthaum. 669 S.W.2d 400, 403 (Tex.

App.—DaIlas 1984, no writ)). “The party claiming abuse of discretion has the burden on appeal to

show the abuse of discretion. Id, (citing Clade v. Larsen, 838 S.W.2d 277, 280 (Tex. App.—Dallas

1992, writ denied)).

                                     Ill. APPLICABLE LAW

       “When a juvenile is given a determinate sentence and TYC makes a request to transfer the

juvenile to TDCJ, the trial court is required to hold a hearing.” In rei.A.R., 343 S.W.3d 504, 505

(Tex. App.—El Paso 2011, no pet.) (citing TEx. FAM. CODE ANN.                  § 54.11). “At a [release] hearing
    the 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 hearing on a request to transfer a juvenile




                                                      —3—
to the TDCJ, the judge may consider: (i) the experiences and character of the person beftwe and after

commitment to the TYC: (ii) the nature of the penal offense that the person was found to have

committed   (lii)   the abilities of the juvenile to contribute to society; (iv) the protection of the victim

of the offense or any member of the victim’s family; (v) the recommendations of the TYC and the

prosecuting attorney; and (vi) the best interests of the juvenile and any other relevant factors.” In re

J.L.C, 160 S.W.3d at 313 (citing TEx. FAM, CODE ANN.             §   54.11(k) (West 2012); In   ic   R.G., 994

S.W.2d 309, 3 12 (Tex. App.4louston [1st Dist.j 1999, pet. denied)). “Evidence of each factor is not

required, and the trial judge need not consider every factor in making his decision.” Id. at 313-14

(citing In re R. G., 994 S.W.2d at 3 12). “Further, the trial court may assign different weights to the

factors it considers, and it may consider unlisted but relevant factors.” in re D.T., 217 S.W.3d 741,

743 (Tex. App,Da1las 2007, no pet.) (citing In re R.G., 994 S.W.2d at 312).

                                              IV. EVIDENCE

       At the release/transfer hearing, Leonard Cucolo, Court Liaison for the TYC. agreed with the

following characterization by the prosecutor of A.C.’s behavior: “despite periods of improvement

or periods of good behavior, she’s never sustained good behavior throughout               ...   never shown

consistent improvement throughout.” In 13 months at the TYC, A.C. had 36 incidents of misconduct,

three of which involved assaultive behavior, was admitted to the security section 19 times, and

participated in a major disruption. After the TYC conducted a review hearing in July 2011, A.C.

continued to act defiantly against the rules, was disruptive and argumentative with staff, and

“demonstrated suicidal behaviors.” Cucolo confirmed A.C. completed most of the programs she

participated in at the TYC, including behavioral improvement, alcohol and drug, and capital and

serious violent offenders treatments programs. The psychological evaluation in the TYC summary




                                                     —4-
report noted AC. “maintain[edj primarily positive behavior and continu[edi to make satisfactory

progress in her individual and group programs.”

        Cucolo said that A.C. had not performed well academically. For some time she refused to

take the GED examination, but finally did    SC)   a week before the release/transfer hearing before the

trial court, Also. A.C. earned approximately ten credits towards her high school diploma. Cucolo

stated if it were not for AC. ‘s imminent nineteenth birthday, the TYC would be willing to continue

to work with A.C. However, Cucolo said he believed A,C. did not take seriously her commitment,

her treatment, or her behavior needs or expectations. Although the treatment team that evaluated

A.C. at the TYC was divided on whether A.C. was “suitable for release” or transfer, the executive

director at the TYC made the ultimate recommendation to transfer A.C. to the TDCJ. Cucolo said

he believed A.C. presented a risk to reoffend and that her transfer to the TDCJ was in the best

interest and the safety of the community.”

       The complainant in A.C.’s aggravated robbery offense, Crystal Ortiz, testified regarding the

“nature of the penal offense that [A.C.] was found to have committed.” See Thx.       FAM. CODE ANN.


§ 54.11(k). Ortiz explained she was walking to her car when A.C. and her two accomplices assaulted
her. She described being punched and kicked, but held onto her car, lost consciousness, and was

dragged along with the car. Her injuries included sores on her stomach, headache, and a swollen

face, and for two to three months after the assault, Ortiz had difficulty walking and required

assistance to take showers. Because she did not feel safe alone or in crowds for six months, she left

the college she was attending in Dallas and moved back to her home in McAllen. Although Ortiz

admitted she did not know what conditions of parole might be placed on A.C., she felt A.C. should

not be paroled and should remain in prison.




                                                   —5—
       A.C,’s grandmother PrinceHa Pruitt testified AC. could live with her if released on parole.

A.C. lived with Pruitt in the past as a child, including the period when A.C, served juvenile probation

for committing a class A assault against another girl. Pruitt stated she participated in conferences

about A.C.’s progress at the TYC and was under the impression the TYC’s recommendation would

be to release A.C, It was Pruitt’s suggestion that A.C. participate in behavioral counseling and take

medication for her bipolar disorder, Pruitt indicated A.C. was suspended from school for having a

“smart mouth,” but also said that behavior could have been due to lack of medication. Pruitt believed

A.C. was ready to be released to the community, to follow the rules, and to obey the law.

       A.C. testified she wanted to be released on parole to live with her grandmother, to return to

high school, and to become an adoption counselor. She said the programs she participated in at the

TYC taught her to control her behavior. According to A.C., her behavior problems at the TYC were

due to her “playing too much” or “not following instructions.” She admitted to making “gun signals

to staff members” at the TYC, but not to threatening or being defiant or argumentative. During

cross-examination, A.C. stated “she would prefer not to”       .   .   .   “show what the gun signal is,” a

response the State contends demonstrates her “defiant nature” and her continued failure to take her

responsibilities seriously or to benefit from the programs she completed at the TYC. The trial judge

denied the prosecutor’s request to instruct A.C. to “make the gun signals.”

                           V. APPLICATiON OF LAW TO FACTS

       The record shows that A.C. committed a Class A assault and aggravated robbery prior to her

commitment at the TYC. She admitted she continued to have behavioral problems at the TYC.

Ortiz’s testimony explained the nature of the offense. The TYC, the prosecutor, and Ortiz

recommended against A.C.’s release.




                                                 —6--
           The record also shows A.C. had remorse for her actions and she wrote a letter of apology to

Ortiz, Further, AC. did not commit any major rule violations in the eight months prior to the

release/transfer hearing. Finally, AC. and her grandmother testified regarding her plans to return to

high school to obtain her diploma and to become an adoption counselor to help other children like

herself.

                                           V. CONCLUSION

           On this record, we conclude the trial court did not abuse its discretion by ordering appellant

transferred to the TDJC. See in re D. T, 217 SW3d at 744; JR. W, 879 SW.2d at 257. A.C. ‘s sole

point is decided against her. The trial court’s order is affirmed.
                                                                                    /   /
                                                            /

                                                           74/                  I
                                                          DOUGLASS LANG
                                                          JUSTICE



11 l469F.PO5
                                 Q.tnirl ut AipitI
                         FiftIi Ditrirt uf cxai tt Da11zu

                                         JUDGMENT
IN RE A.C., A CHILD                                   Appeal from the 30S
                                                                      h1 Judicial District
                                                                      t

                                                      Court of Dallas County, Texas, (Tr.Ct.No.
No. 05-1 I-01469-CV                                   J D-67977-X).
                                                      Opinion delivered by Justice Lang, Justices
                                                      Bridges and Richter participating.



       In accordance with this Court’s opinion of this date, the the trial court’s order to transfer
A C to the Texas Depitmcnt of Cairninal Justicc is AFFIRMFD



Judgment entered November 7. 2012.




                                                      DOU(LASS lANG
                                                      JUSTiCE
