      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00259-CV



                                        In the Matter of J. A.


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
        NO. J-24,630, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



                              MEMORANDUM OPINION


                In 2006 the trial court adjudicated J.A., then 16 years old, guilty of the offense of

aggravated robbery and committed him to the Texas Youth Commission for a determinate sentence

of sixteen years. Four-and-a-half years later, the youth commission requested that J.A. be transferred

to the Institutional Division of the Texas Department of Criminal Justice to complete his sentence.

After a hearing, the district court ordered J.A. transferred. In this appeal, J.A. contends that the court

abused its discretion by ordering him transferred from the youth commission to the TDCJ. We

conclude that the district court acted within its discretionary authority and affirm the transfer order.

                We review the district court’s decision to transfer J.A. from the youth commission

to the TDCJ for an abuse of discretion. In re D.T., 217 S.W.3d 741, 743 (Tex. App.—Dallas 2007,

no pet.); In re C.L., 874 S.W.2d 880, 886 (Tex. App.—Austin 1994, no writ). The reviewing court

analyzes the district court’s decision to determine whether it was made without reference to guiding

rules or principles. In re J.L.C., 160 S.W.3d 312, 313 (Tex. App.—Dallas 2005, no pet.). A transfer

order will be reversed only if the court acted in an unreasonable and arbitrary manner. Id.
                When evaluating a request to transfer, the district court may consider: (1) the

experiences and character of the person before and after commitment to the youth commission;

(2) the nature of the penal offense 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 youth commission and the

prosecuting attorney; (6) the best interests of the person to be transferred; and (7) any other relevant

factor. Tex. Fam. Code Ann. § 54.11(k) (West Supp. 2011). The trial court need not consider all

of the listed factors and may assign different weights to the factors. J.L.C., 160 S.W.3d at 313-14.

                At the transfer hearing, Katherine Hallmark, a psychologist and manager of clinical

services at Giddings State School, where J.A. resided, testified that J.A. has done extremely well

with his education while at the youth commission. He received his GED and obtained vocational

certificates in computers, welding, and building trades. According to Hallmark, J.A. hoped to one

day work with his family. Hallmark testified, however, that J.A. has not made progress with regard

to his history of gang-related activities. She stated that although J.A. has worked with his

caseworker to renounce his gang, he has continued to engage in gang-related behavior, including

attempting to contact his co-actor in the offenses resulting in his commitment. Hallmark recounted

incidents in which J.A. was believed to have been involved in gang-related assaults on other

juveniles at the youth commission.

                When he arrived at the youth commission, J.A. was diagnosed with antisocial traits,

which included deceit, poor planning, aggressive pattern behavior, disregard for the safety of others,

and lack of concern for others’ thoughts and feelings. According to Hallmark, J.A.’s history at the



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youth commission reveals that he is capable of controlling his behavior, as indicated by several

months with no incidents, but that in the last six months he has reverted to problem behavior,

including possessing contraband, lying, committing assaults, and exhibiting disregard for others.

Hallmark testified that J.A. was seen on a videotape snorting and passing around a white powdery

substance. When confronted, J.A. denied that he had done this, but upon viewing the videotape

acknowledged that it was him. Hallmark stated that this revealed a narcissistic thought process in

which a person believes he can do whatever he wants and get away with it.

               J.A. did complete the “Alcohol and Other Drugs Program,” but his records note a

reservation that he has not shown that he feels accountable for his behavior. He also participated in

the “Capital Offenders Program” and initially did well discussing his life story and family

experiences. He was, however, reluctant to take responsibility for his offense or his pattern of

offenses committed while at the youth commission and did not demonstrate accountability for his

gang ties or his negative peer associations. J.A. was ultimately removed from the Capital Offenders

Program for activity outside the group meeting room that demonstrated his failure to hold himself

accountable. Hallmark referred to a psychologist’s report that stated that J.A. would admit his

involvement in certain activities but would attempt to minimize their severity. Hallmark testified

that this indicates that J.A. does not understand how victimization of people can hurt them in many

different ways. She testified that based on his negative peer associations, J.A. values “criminal

behavior, criminal thinking, doing what you want to do when you want to do it.” Hallmark observed

that J.A. is a very intelligent and capable person who could have completed the Capital Offenders

Program if he had chosen to.



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               Hallmark expressed concern that J.A. has not renounced his gang affiliation and has

stated that he does not plan to separate from his gang-related affiliations until released from the

youth commission because it “is important to him to leave the gang in the right way.” J.A. shared

with her his plan to, upon release, go directly to the leader of the gang in Austin and tell him what

he plans to do with his life. Hallmark testified that this indicated to her that J.A. intended to be in

contact with gang-affiliated peers, which could be a very high-risk situation. J.A. has expressed no

remorse for his crime, which, in Hallmark’s view, indicates that he cares about his negative peer

associations and his gang members and that he has forgotten about the crimes he committed and how

he injured two people.

               Hallmark summarized by stating that J.A. is capable of further vocational training and

has no mental health issues. J.A. has good support from his family, including his mother and father.

He has a history as a violent offender, however, and has continued aggressive behavior at the youth

commission, along with continued negative peer associations. While she expressed admiration for

J.A.’s educational accomplishments while at the youth commission, she also expressed her concern

that J.A., if paroled, would contact his co-actor in his crime and continue gang-related associations.

               Shanika Bimage, a case manager at Giddings State School also testified at the transfer

hearing. J.A. has been one of her students since approximately October 2009, and she stated that he

had always been respectful to her and she has not witnessed him engage in any assaultive behavior.

Bimage testified that she was concerned that J.A. continues to have issues with his gang affiliation

as evidenced by his doing computer research on gang graffiti. J.A. also had gang graffiti on his math

folder. She also stated that J.A. was confident that he would be going home soon and that his actions



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at the youth commission were of no consequence.1 Bimage testified that when she talked to J.A.

about his gang activity, he “pushed it under the rug” and acted like it was not a big deal.

                According to Bimage, J.A.’s family is very supportive, and he has shared with her his

desire to use his vocational skills to open and operate an auto-repair business. J.A. told her that his

family had already indicated that they would help him with employment and with obtaining the

resources to start a business.

                Leonard Cucolo, the court liaison for the youth commission, testified that after the

first transfer hearing, he had discussions with J.A. in an effort to assist him with renouncing his gang

affiliations. According to Cucolo, although J.A. understood what he needed to do to avoid transfer

to the TDCJ, he was unable to “interrupt his thinking pattern” and continued to be involved in and

to support a violent gang in the youth commission. He testified that the risk factors for violence

remain and that the welfare of the community required transfer. Cucolo acknowledged that J.A. did

very well in the Capital Offenders Program with respect to telling his life story, but he also stated

that J.A. struggled with maintaining good behavior and severing his ties to the gang. Consequently,

Cucolo believed that while J.A. has made improvements, he is still at risk to engage in conduct

similar to that which resulted in his commitment, including substance abuse, gang-related

involvement, and aggressive or violent offenses. Cucolo’s main concern was that J.A. had not

internalized necessary changes to his behavior and continued to exhibit evasiveness, difficulty

complying with simple rules, and gang-related behavior.


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          The district court had, two years previously, denied a youth commission request to transfer
J.A. to the TDCJ. Bimage testified that J.A. was “really positive” about the second transfer hearing
and believed that the judge would once again deny the transfer request.

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                The trial judge spoke at length to J.A. She told him that she remembered him from

the previous transfer hearing and that she had asked him to renounce his gang. Although she

commended him for doing many of the things she had asked of him, she expressed concern that as

one of the oldest residents of the youth commission, whom she had expected to take on a leadership

role in talking to others about ending their gang affiliations, he had instead become a “more

sophisticated gang-type leader.” She observed that allowing him to remain at the youth commission

had in some ways done him the injustice of allowing him to be a “big fish in a little pond,” and rather

than acting as a leader, if he were to be released he would carry that “mentality of being the big fish”

with him. She concluded by stating that her decision to transfer J.A. to the TDCJ was based on a

desire to protect society and do justice.


                                            CONCLUSION

                There was extensive testimony at the transfer hearing about J.A.’s performance in the

youth commission. The record reveals that J.A. was committed to the youth commission for a

determinative sentence of 16 years for the offense of aggravated robbery with a deadly weapon (a

stick). Although there was evidence of J.A.’s significant academic achievements, completion of the

Alcohol and Other Drugs Program, and near completion of the Capital Offenders Program, as well

as a decline in J.A.’s incidents of misconduct during his last year at the youth commission, there was

other evidence that his gang-related behavior remained the same and that his behavior was largely

volitional. Along with the youth commission’s recommendation for transfer, there was evidence that

J.A. had not internalized what he had learned in the various programs to effect positive changes in

his behavior. The court’s statements at the close of the hearing make it plain that she considered the

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factors in J.A.’s favor as well as those working against him. She expressed both her disappointment

that J.A. had wasted an opportunity to use his seniority and mental capabilities to demonstrate

positive leadership skills and her concern that, if released, he would pose a risk to the community.

Based on this record, we cannot say that the court’s decision was made without reference to guiding

rules or principles or that the court acted in an arbitrary or unreasonable manner. See J.L.C.,

160 S.W.3d at 313. Accordingly, we affirm the district court’s order.



                                              _____________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: July 3, 2012




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