                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                      No. 06-14-00054-CV




                                 IN THE MATTER OF D.V.W.




                        On Appeal from the County Court at Law No. 1
                                     Hunt County, Texas
                                   Trial Court No. J-01902




                        Before Morriss, C.J., Moseley and Carter*, JJ.
                        Memorandum Opinion by Chief Justice Morriss


_______________________________
*Jack Carter, Justice, Retired, Sitting by Assignment
                                 MEMORANDUM OPINION
       D.V.W., previously adjudicated for aggravated assault, had his community supervision

revoked, received a determinate sentence of three years, and was committed to the Texas

Juvenile Justice Department (TJJD) February 5, 2013. Because D.V.W. will not complete the

statutory minimum period of confinement for his offenses before turning eighteen years of age, a

hearing was conducted to determine whether he should be released on parole or finish serving his

sentence as an adult. More formally, the trial court’s choice was between supervision by the

Texas Department of Criminal Justice–Parole Division (Parole Division) or custody in the Texas

Department of Criminal Justice–Institutions Division (Institutions Division). 1 After the hearing,

the trial court ordered D.V.W. transferred to the Institutions Division.

       On appeal, D.V.W. contends that the trial court abused its discretion in transferring him

to the Institutions Division rather than the Parole Division. Because evidence supports the trial

court’s order of transfer, we affirm.

       D.V.W. argues that the record establishes that he should have been placed on parole with

conditions.

       We review for an abuse of discretion a trial court’s decision to transfer a juvenile from

the TJJD to the TDCJ. In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006, pet.

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

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

court acted without reference to any guiding principles or rules. D.L., 198 S.W.3d at 229; J.L.C.,

1
 See TEX. FAM. CODE ANN. § 54.11 (West 2014); TEX. RES. CODE ANN. § 244.014 (West Supp. 2014), § 245.051
(West 2013).

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160 S.W.3d at 313. We do not substitute our opinion for the trial court’s discretion and reverse

only if the trial court acted in an unreasonable or arbitrary manner. In re T.D.H., 971 S.W.2d

606, 610 (Tex. App.—Dallas 1998, no pet.).

       Section 54.11 of the Texas Family Code governs release or transfer proceedings

involving juveniles. See TEX. FAM. CODE ANN. § 54.11. In determining whether the youthful

offender should be released on parole or transferred to the Institutions Division, the trial court

may consider

       the experiences and character of the person before and after commitment to the
       [TJJD] or post-adjudication secure correctional facility, the nature of the penal
       offense that the person was found to have committed and the manner in which the
       offense was committed, the abilities of the person to contribute to society, the
       protection of the victim of the offense or any member of the victim’s family, the
       recommendations of the [TJJD], county juvenile board, local juvenile probation
       department, and prosecuting attorney, the best interests of the person, and any
       other factor relevant to the issue to be decided.

TEX. FAM. CODE ANN. § 54.11(k). Evidence of each factor is not required, and the trial court

need not consider every factor in making its decision. In re R.G., 994 S.W.2d 309, 312 (Tex.

App.—Houston [1st Dist.] 1999, pet. denied). In making its determination, “the court may

consider written reports from probation officers, professional court employees, professional

consultants, or employees of the [TJJD], in addition to the testimony of witnesses.” TEX. FAM.

CODE ANN. § 54.11(d); In re F.D., 245 S.W.3d 110, 113 (Tex. App.—Dallas 2008, no pet.). At

the conclusion of the hearing, the trial court may order the person back to the TJJD, released




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under parole supervision, or order the person transferred to the Institutions Division for the

completion of his sentence. 2 TEX. FAM. CODE. ANN. § 54.11(i), (j).

         At the hearing, Leonard Cucolo, court liason for the TJJD, testified for the State, and

Cucolo’s report was admitted into evidence. Cucolo testified that D.V.W. does not have any

mental health issues that would interfere with his ability to fully participate in the TJJD program.

According to Cucolo, D.V.W. has all the abilities needed to succeed. D.V.W. completed the

required alcohol and drug treatment programs. D.V.W., however, was unable to complete the

“Serious Violent Offender Treatment Program” because he was removed from the group due to

poor behavior and poor participation. Cucolo noted, “[T]o be fair[,] . . . once he was removed

there was little time for him to be able to reenter the group, because it’s a closed group, and

another group wouldn’t have started. And even if it did start, he wouldn’t have enough time to

complete it.”

         Cucolo’s report includes an evaluation of D.V.W. by Dewayne K. Jones, M.A., a

psychologist. In the report, Jones stated that D.V.W.’s profile indicates that he has “an increased

probably of delinquent, externalizing, and aggressive behaviors,” but, ultimately, Jones

recommended that D.V.W. be released to parole rather than Institutions Division. 3 D.V.W.




2
 The transfer hearing is a “second chance hearing” after a child, such as D.V.W., has already been sentenced to a
determinate number of years. See F.D., 245 S.W.2d at 113. It is not part of the guilt/innocence determination and
need not meet the extensive due process requirements of an actual trial. Id. (juvenile has no right of confrontation at
transfer hearing because it is dispositional rather than adjudicative in nature); In re D.S., 921 S.W.2d 383, 387 (Tex.
App.—Corpus Christi 1996, writ dism’d w.o.j.).
3
 Jones noted that, if D.V.W. were transferred to the Institutions Division, “he would be exposed to individuals who
would likely reinforce his tendency to use thinking errors to justify criminal behavior but more importantly he would
not likely receive any time on parole to supervise his transition to the community.”
                                                          4
performed “exceptionally well” academically while at the TJJD, has a high school diploma,

completed college-level classes, and obtained two vocational certifications.

            Cucolo also testified that D.V.W. had serious behavioral issues. He had fifty-three

documented incidents of misconduct, for which he was “placed in the security unit on 24

occasions.” 4 The report noted that seven of the incidents were for horseplay, four were for

threatening others, two were for assault, and one was for fighting. Cucolo was concerned

because, despite being in the program for fourteen or fifteen months, D.V.W. consistently had

behavioral problems and made poor decisions, but his behavior began to improve the month

before the hearing. D.V.W. was “still struggling with maintaining good, stable behavior while

he was still confined,” and that made Cucolo question D.V.W.’s ability to “make it on parole.”

However, based on an objective review of D.V.W.’s case, every member of the special services

committee, the body making the TJJD’s recommendation, agreed that D.V.W. should be released

on parole because “his risk factors can be managed in the community.”

            Ultimately, the trial court ordered D.V.W. transferred to the TDCJ-ID to continue serving

his sentence. There is evidence in the record to support the court’s decision: (a) D.V.W.

continued to have behavioral problems while in TJJD’s custody; (b) the prosecuting attorney

recommended transfer to TDCJ-ID; and (c) the underlying offense was violent. See TEX. FAM.

CODE ANN. § 54.11(k). As there is “some evidence” in the record to support the trial court’s

decision, there is no abuse of discretion. See D.L., 198 S.W.3d at 229. Accordingly, we overrule

this point of error.


4
    The report noted that one incident was “a self-referral and not considered behavioral in nature.”
                                                             5
      We affirm the trial court’s order transferring D.V.W. to the TDCJ-ID.



                                                  Josh R. Morriss, III
                                                  Chief Justice

Date Submitted:     January 8, 2015
Date Decided:       January 14, 2015




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