                                        NO. 07-09-0386-CV

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL A

                                        NOVEMBER 3, 2010

                              ______________________________


                                     IN THE MATTER OF R.A.

                            _________________________________

                FROM THE 106TH DISTRICT COURT OF GARZA COUNTY;

              NO. 350; HONORABLE CARTER T. SCHILDKNECHT, JUDGE

                             _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                    MEMORANDUM OPINION


        R.A., born on November 1, 1988, committed sexual assault and indecency with a

child against an eight year old female and an eight year old male on separate occasions

when he was fourteen years old. When R.A. was sixteen, the State brought charges

alleging delinquent conduct. In May 2007, R.A. pled not true, and a jury found that he

engaged in delinquent conduct as defined in section 51.03(a)(1) of the Texas Family

Code. 1 Following his disposition hearing, the jury found that R.A. should be committed


1
 R.A. was found to have engaged in five counts of aggravated sexual assault (Tex. Penal Code Ann. §
22.021) (Vernon Supp. 2010), a first degree felony (§ 22.021(e)), and two counts of indecency with a child
(Tex. Penal Code Ann. § 21,11), a third degree felony (§ 21.11(a)(2)(B)).
to the Texas Youth Commission (TYC) with a possible transfer to the Institutional

Division of the Texas Department of Criminal Justice (TDCJ) for a determinate sentence

of seventeen years. The trial court adopted the jury's finding.


        On August 25, 2009, when it was determined that R.A. would not complete the

statutory minimum sentence of three years 2 by his twenty-first birthday, 3 TYC referred

R.A. to the trial court for a release or transfer hearing. See Tex. Hum. Res. Code Ann.

§§ 61.079(a) and 61.081 (Vernon Supp. 2010). Pursuant to section 54.11 of the Texas

Family Code, the court gave notice of the hearing to the parties.                          Following the

presentation of testimony and evidence, the trial court ordered that R.A. be transferred

to the custody of TDCJ for completion of his seventeen year sentence. This appeal

followed.


        By a sole issue, Appellant questions whether the trial court abused its discretion

in transferring him to the Institutional Division of TDCJ. The State of Texas did not favor

us with a brief. 4 Thus, this being a civil case, we will accept as true facts provided by

Appellant in his brief. See Tex. R. App. P. 38.1(g).


2
Tex. Hum. Res. Code Ann. § 61.081(f)(2) (Vernon Supp. 2010).
3
 In 2007, the Legislature reduced the age of confinement at TYC from twenty-one years of age to
nineteen. See Act of May 25, 2007, 80th Leg., R.S., ch. 263, §§ 50 and 53, 2007 Tex. Gen. Laws 421,
447, 449. The changes became effective June 8, 2007. Section 67 of the Act provides that a child who is
adjudicated before the effective date of the Act is governed by the law in effect when the child was
adjudicated and the former law is continued in effect for that purpose. See generally In re T.G., No. 03-
07-00543-CV, 2008 Tex. App. LEXIS 4551, at *18-20 (Tex.App.--Austin June 19, 2008, pet. denied)
(mem. op).
4
 The State=s brief was due on May 10, 2010. See Tex. R. App. P. 38.6(b). On October 22, 2010, citing
the failure to receive a copy of Appellant's brief, the State did address a letter to the Clerk of this Court
requesting a thirty day extension in which to file a response. This method of requesting an extension falls
short of the requirements of Rule 38.6(d). Accordingly, the State's request is denied. While Rule 38.8(b)
expressly guides this Court as to what to do if an appellant fails to file a brief, there is no corresponding
rule to guide us when the State fails to file a brief in response to an appellant=s brief. Several

                                                     2
I. Standard of Review


        A trial court's decision to transfer a juvenile from TYC to the Institutional Division

of TDCJ is reviewed for abuse of discretion. In re D.L., 198 S.W.3d 228, 229 (Tex.App.

--San Antonio 2006, pet. denied).               In making this determination, this Court must

consider the entire record to ascertain whether the trial court acted without reference to

guiding rules and principles. Id. If some evidence supports the trial court's decision,

there is no abuse of discretion. In re J.M.O., 980 S.W.2d 811, 813 (Tex.App.--San

Antonio 1998, pet. denied). 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. v. State, 879 S.W.2d 254, 257 (Tex.App.--Dallas 1994, no writ). We

may not, however, reverse a trial court's decision simply because we disagree. In re

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


II. Applicable Law


        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. See Tex. Fam. Code

Ann. § 54.11 (Vernon Supp. 2010). See also Tex. Hum. Res. Code Ann. § 61.079(a)

(Vernon Supp. 2010). At the hearing, a trial court may consider written reports from

probation officers, professional court employees, professional consultants, or TYC


intermediate appellate courts, including this Court, have held that whenever the State fails to file a brief,
an appellate court should conduct an independent analysis of the merits of the appellant=s claim of error,
limited to the arguments raised at trial by the State, to determine if there was error. See Siverand v.
State, 89 S.W.3d 216, 220 (Tex.App.BCorpus Christi 2002, no pet.); Haley v. State, No. 13-02-0033-CR,
2006 Tex.App. LEXIS 391 (Tex.App.BCorpus Christi Nov. 22, 2006, pet. ref=d) (not designated for
publication); Mosley v. State, Nos. 07-02-0178-CR, 07-02-0179-CR, 2003 Tex.App. LEXIS 6899
(Tex.App.BAmarillo Aug. 12, 2003, pet. ref=d) (not designated for publication). Cf. In re Bowman, No. 03-
07-0418-CR, 2007 Tex.App. LEXIS 9500 (Tex.App.BAustin Dec. 5, 2007, no pet.) (not designated for
publication); Burns v. Rochon, 190 S.W.3d 263 (Tex.App.BHouston [1st Dist.] 2006, no pet.).

                                                     3
employees, in addition to testimony of witnesses. Tex. Fam. Code Ann. § 54.11(d).

Following the hearing, the trial court may either (1) order the return of the juvenile to

TYC or (2) order the transfer of the juvenile to the custody of TDCJ for completion of his

sentence. § 54.11(i).


       Factors the trial court may consider in its decision include (1) the experiences

and 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 juvenile 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

juvenile; and (7) any other factor relevant to the issue being decided. § 54.11(k). Not

every factor need be considered and the trial court may assign different weights to the

factors considered. In re R.G., 994 S.W.2d at 312.


III. Analysis


       A. The State's Witnesses


       The trial court heard testimony from seven witnesses, including R.A. 5 Leonard

Cucolo, TYC liaison to the courts, opened the testimony for the State and testified that

TYC's recommendation was for R.A. to be released to adult parole for the remainder of

his determinate sentence with intense supervision, including wearing a leg monitor. He

explained the serious procedure TYC follows in deciding whether to recommend a

5
Both victims' mothers and R.A.'s mother testified with the aid of an interpreter.



                                                     4
juvenile for transfer to prison or for release to adult parole. According to Cucolo, a

juvenile who has severe behavioral problems, fails to progress in programs, and is a

great risk to the community will likely be transferred to prison whereas a juvenile who

completes treatment and programs, exhibits stable behavior, and presents a low risk to

the community based on a psychological evaluation will be considered for release.

According to Cucolo, after a juvenile is evaluated by a psychologist, TYC department

heads meet to review and consider the information and determine whether the juvenile

is on a particular track. The committee, who considers all factors listed in section 54.11

of the Family Code, then votes on whether to release the juvenile to parole and sends

its recommendation to the facility's superintendent. If the superintendent agrees with

the committee's recommendation, he approves it and forwards it to Cucolo's office in

Austin. Several other TYC personnel review the recommendation and either approve or

disapprove it before it finally reaches TYC's Executive Director, who makes the final

decision on whether to recommend a release or transfer to prison. Cucolo added that

the decision to release a sex offender is not a decision that is "lightly made."


       Cucolo testified that R.A. eventually accepted responsibility for his conduct,

participated in resocialization programs, and successfully completed a sex offender

treatment program. Academically, R.A. lacked only one credit in algebra for a high

school diploma as opposed to a General Equivalency Diploma.             He also earned a

vocational certificate in building cabinets. R.A.'s behavior was described as "excellent,"

and he only had one incident of misconduct for failing to report a fight in a dormitory,

which R.A. successfully appealed.




                                             5
       Cucolo explained that the goal was to have R.A. released to parole in Palestine,

Texas, where his parents own a home. Palestine is not in Garza County where the

victims and their families reside. Essentially, R.A. would be under house arrest for the

remainder of his determinate sentence. Cucolo's written report indicated that one of the

conditions of release would be R.A.'s participation in a "Super Intensive Supervision

Program” (SISP). He would also be required to continue sex offender programming and

either maintain stable employment or school enrollment. No extracurricular activities

would be allowed.


       Brandt Taylor, Chief Juvenile Probation Officer for Garza County, recommended

that R.A. serve the remainder of his sentence in prison. Although he testified that the

success rate for adult sex offenders he has supervised was "not very good," he could

not say whether juveniles would reoffend after age eighteen. Taylor testified contrary to

Cucolo that Cucolo had informed him that R.A. had not admitted his crimes, which

Taylor interpreted as a failure by R.A. to cooperate. Taylor also testified that the male

child victim was adjusting well but his progress would be hindered if R.A. was released

to adult parole.


       The male child victim's mother testified that, prior to adjudication, R.A. had

threatened the victim and her family if the abuse was reported. According to her, the

victim is unable to trust others, is nervous and sad, and has trouble sleeping. The

family does not talk about the abuse, and television programs are censored for sexual

content. She believes R.A. poses a danger to her family and believes parole would be

an "injustice." She testified that she wanted R.A. to admit his crimes. In her opinion, if

R.A. was granted parole, she would want him to live as far away as possible, but knew

                                            6
that R.A.'s family still resided in Garza County notwithstanding that they owned a home

in Palestine, Texas.


         The female victim's mother testified that her family and R.A.'s family used to be

neighbors, but they have since moved. After the abuse, the female victim developed

nervous habits, experienced headaches, and did not do well in school. She requires

medication to function. The victim's mother wants R.A. to admit the truth about the

abuse.


       B. R. A.'s Witnesses


         Cucolo was recalled to clarify Taylor's testimony that R.A. was not accepting

responsibility for his conduct. During his testimony, Taylor suggested that Cucolo had

told him R.A. had not admitted his crimes, which Taylor interpreted as a lack of

cooperation. Cucolo, however, testified that R.A. had confessed his guilt while at TYC.


         R.A.'s case worker, Destany Carter, testified that a requirement of the sex

offender treatment program is to provide a description of the offense. When R.A. was

first confined to TYC, he denied the abuse. Eventually, R.A. confessed to his previous

case worker and then did so again in a group setting after Carter was assigned to his

case. Carter testified that she visited with R.A. on a daily basis and was satisfied with

his progress. R.A. took a leadership role while at TYC, received recognition for his

behavior, including two student-of-the-month awards, and performed well academically.

R.A. also learned a trade while at TYC and received recognition for completing core

curriculum from the National Center for Construction, Education, and Research to build

cabinets. R.A. is also certified to work on auto air conditioners.

                                             7
          Carter testified that after seriously considering the victims and their families, she

was comfortable recommending R.A. for release to parole away from where the victims

reside.     During cross-examination, she revealed that she has counseled over one

hundred sex offenders and has recommended "very few" for release. Again during

cross-examination, she testified that R.A. admitted to one incident of abuse against his

victims, yet was found to have engaged in multiple incidents with each of them.

According to Carter, R.A. abused his male victim because he was young and R.A.

believed he would get away with it. With his female victim, he acted more on impulse

when she visited his home. From the tenor of the questions during cross-examination,

she testified it was possible for R.A. to be a potential future threat to those who are

smaller and weaker than himself.


          Appellant's mother testified that she and R.A.'s father own a home in Palestine,

Texas, outside Garza County. However, they do not have employment waiting for them

and her husband has been unable to work since 2008 due to eye problems. He has

had five eye surgeries and she did not know when his treatment would be completed.

In response to questions during cross-examination, she testified that she did not know

R.A. was capable of committing the crimes he did and could not guarantee this would

never happen again while under her supervision.


          With the aid of an interpreter, R.A. was admonished about testifying.            He

admitted the abuse against his two child victims and apologized to the families. He also

admitted denying his conduct when he was first institutionalized, then taking

responsibility for his action during the course of his treatment.              During cross-

examination, he was asked to describe the acts committed against his victims, which he

                                                8
did. He believed the victims would not report him because of their youth. He also

admitted threatening the lives of his male victim and his family.


       R.A. testified that as part of his treatment, he was required to keep a notebook in

which he wrote letters to his victims apologizing for his conduct. The letters, however,

were only part of the program and were not intended to be mailed to the victims. He

explained that he first denied the allegations because he was scared after a judge at his

first court appearance told him he could get a life sentence.


       R.A. hoped to move to Palestine and work as an auto mechanic and build

cabinets. He acknowledged that he would have to register as a sex offender once his

parole was concluded.       He explained that his treatment made him aware that

pornography was one of his high risk factors for offending. Several other risk factors

included R.A. being confronted with difficult situations and dealing with others.

According to a psychological evaluation written by Dr. Greg W. Joiner, Ph.D., which was

admitted into evidence, other risk factors included limited sexual contact, limited social

network, and marginal social skills.    Dr. Joiner also listed certain protective factors

indicative of not re-offending including absence of abuse, functional and nurturing

family, absence of sexual acting out, absence of delinquency, absence of substance

abuse, and absence of behavioral problems in an educational setting.           Dr. Joiner

concluded, "[o]verall, [R.A.] does not present as a severe risk for re-offense. He has

some significant protective factors."


       Following all the testimony and brief closing arguments, the trial court expressed

certain concerns. At the time of the hearing, R.A. was two weeks from his twenty-first


                                             9
birthday and had not yet completed the minimum three year sentence. While the trial

court commended R.A. on his treatment and progress, it appeared that R.A.'s testimony

was "regurgitation."      The court seriously considered R.A. being amenable to

rehabilitation, but was concerned about Cucolo's testimony and report that R.A. can

conform his behavior within the confines of a high restriction facility. If paroled, the

court doubted that R.A. would have the intensive supervision he requires. The court

concluded, "just quite honestly," it "would not feel secure in approving and ordering a

release of [R.A.] when he is several months away from even serving the minimum

period of confinement." The court then ordered that R.A. be transferred to TDCJ.


       Notwithstanding the testimony of Cucolo and Carter that R.A. be released to

parole, the trial court was under no duty to follow their recommendations. J.R.W., 879

S.W.2d at 256.     After reviewing the entire record and taking into consideration the

factors enumerated in section 54.11(k) of the Family Code, we find there is some

evidence to support the trial court's decision to transfer R.A. to the Institutional Division

of TDCJ. See In re J.M.O., 980 S.W.2d at 813. Consequently, we find no abuse of

discretion in the trial court's decision. R.A.'s sole issue is overruled.


                                        Conclusion


       Accordingly, the trial court's order transferring custody of R.A. to the Institutional

Division of the Texas Department of Criminal Justice for completion of his seventeen

year sentence is affirmed.


                                                   Patrick A. Pirtle
                                                       Justice


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