                           NUMBER 13-10-00189-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

                 IN THE MATTER OF P.D.M., A JUVENILE


                     On appeal from the Juvenile Court
                          of Polk County, Texas.


                        MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Benavides

      Appellant, P.D.M., was convicted by a juvenile court of delinquent conduct for

murder and reckless injury to a child for which he was sentenced to twenty-four years’

and twenty years’ commitment with the Texas Youth Commission (―TYC‖), respectively.

Each sentence carried the possibility of transfer to the Texas Department of Criminal

Justice—Institutional Division (―TDCJ‖) upon P.D.M. reaching the age of majority.
Shortly before his twenty-first birthday, and upon the recommendation of TYC, P.D.M.

was ordered to be transferred to TDCJ to serve the remainder of his sentences. By one

issue, P.D.M contends that the trial court abused its discretion in ordering that he be

transferred to TDCJ as opposed to being ordered to adult parole. We affirm.

                                            I. BACKGROUND1

        In opening arguments in the hearing on the order to transfer P.D.M. to TDCJ,

without objection, the State ―reminded‖ the court of the circumstances of the underlying

offenses for which P.D.M. was being confined:

                [On] January 1st of 2005, [P.D.M.] was playing with a weapon. He
        was dry-firing an automatic pistol at three other children, all under the age
        of 14. At some point, he re-engaged the clip in that weapon, pulled the
        slide back to engage a bullet, and then pulled the trigger, shooting his
        sister in the face.

               He then took the other two children home, in an attempt to help
        cover up the crime that he had committed, then tampered with evidence,
        moved the body, covered up the blood, lied to his mother about what had
        occurred, and continued with that lie for quite a period of time before the
        Sheriff’s Department was finally able to determine that it was not an
        accident, and that he had, in fact, murdered his sister.

At the time of the shooting, P.D.M. was fifteen years old.               The jury specifically found that

P.D.M. was not guilty of delinquent conduct for ―intentionally or knowingly‖ shooting his

sister, but rather, that he was guilty of delinquent conduct because he caused her death

while committing or attempting to commit the felony of endangering a child and because

he recklessly caused serious bodily injury to his sister by shooting her with a firearm.


        1
         This case is before this Court on transfer from the Court of Appeals for the Ninth Judicial District in
Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN.
§ 73.001 (West 2005).
                                                       2
P.D.M. appealed his sentences to the Court of Appeals for the Ninth Judicial District, and

the court affirmed the juvenile court’s judgment.           See In re P.D.M., No. 09-06-246-CV,

2008 Tex. App. LEXIS 897, at *9 (Tex. App.–Beaumont February 7, 2008, no. pet.)

(mem. op.).

        At the transfer hearing, the State called two witnesses—Dr. Steven Brownlow2

and Leonard Cucolo. 3          Each of these witnesses was, at the time of the hearing,

employed by TYC and each testified that it was the recommendation of TYC that P.D.M.

be transferred to TDCJ.        Specifically, Dr. Brownlow testified as follows:

        Q:      [Counsel for the State] Okay. You, I guess along with your
                supervisor, Dr. Claridge, were ultimately asked to give a
                recommendation to TYC[,] and indirectly to this Court, as to whether
                or not [P.D.M.] should be paroled when he turns 21[,] here in April,
                back to our community or transferred in to the adult correctional
                TDCJ facility, what was your opinion?

        A:      [Dr. Brownlow] Our opinion was that he needed to be transferred.

        Q:      What was the principal basis for that finding?

        A:      . . . [T]he research evidence on the Capital Offender Program has
                shown that the people who have completed it successfully[] do well.
                They have much lower recidivism rates than people who don’t go
                through the program.


        2
          The testimony indicated that Dr. Brownlow received a doctoral degree in clinical psychology from
Walding University and a master’s degree in educational psychology from the University of Texas at Austin.
Additionally, the testimony indicated that he had worked primarily in the field of treatment of adolescent
males for ―the better part‖ of thirty years and had previously worked with the San Antonio State Hospital.
        3
          The record showed that Cucolo was the Court Liaison for TYC and that his responsibilities
included providing information to the trial court about offenders who were being transferred and providing
the court with TYC’s recommendations. Cucolo testified that he had worked with TYC since 1988 as a
Program Therapist in the Sex Offender Treatment Program, a Program Administrator, a Victim Services
Coordinator, and a Court Liaison. He received a bachelor’s degree from Southwest Texas State University
and a master’s degree in social work from Our Lady of the Lake University in San Antonio.
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                     On the other hand, people who fail the program, that’s
             not—that’s not true. And the biggest reason is not that they [] could
             stand up and say what they’ve done and sort of act it out and so
             forth, but that they’ve come to accept responsibility for what they’ve
             done. And by accepting responsibility for what they’ve done,
             they’re then able to formulate plans. They have some self-insight,
             some self-understanding, and they’re then able to formulate some
             plans that would allow them to realize, oh, I don’t want this to
             happen again, I better do these things. I better not put myself into
             these kinds of situations. I better not do this, I better do this
             instead.

                    If you didn’t do anything, if you steadfastly maintain that you
             didn’t do anything, and the only reason that you got—the only
             reason that you got 24 years is because the Jury understood it was
             an accident, which he told me, then it’s very difficult to see that
             —that he’s able to make any kind of reasonable plans that are going
             to keep him safe in the future.

              ....

      Q:     But when you look at the overall big picture, I guess I’m gleaning
             from your testimony, you have concern as to whether he made—he
             has the potential, at least, to violently re-offend—

      A:     Yes, I tend to believe that in this case, treatment is important. I
             tend to think that if we’re—if—to the extent that TYC is a juvenile
             agency that’s charged with rehabilitating criminals, and they refuse
             to go through rehabilitative therapy, then it’s hard to say that I
             believe that they have rehabilitated themselves.

The testimony further indicated that P.D.M. refused to participate in any therapy

programs for the first two years of his confinement at TYC. However, once his appeal

was finally denied, P.D.M. eventually agreed, ―kicking and screaming,‖ to participate in

the Capital Offenders Program.       He was deemed to have failed the program.

According to the testimony, P.D.M. never took responsibility for his involvement in his


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sister’s death.   At one point during the program, P.D.M. did admit that ―his finger must

have touched the trigger,‖ but just three days later, he was again denying any

responsibility for the shooting.

       Testimony from the witnesses also indicated that, while at TYC, P.D.M. had

taught himself to read and write and had earned a high-school diploma; that he had

assisted a TYC teacher in instructing other students; that he completed trade courses in

construction and cabinetry; that, though gangs were present at TYC, he was not a

member of any gang; and that he had an exemplary behavioral record with not one

single ―write-up‖ in forty-five months of confinement. Additionally, without objection,

counsel for P.D.M. introduced two handwritten notes from P.D.M. into evidence in which

P.D.M stated, in pertinent part ―I do addmet [sic] that I took my sister’s life by shooting

her[,] but it was not on purpes [sic] and I think about it from the time I wake up to the time

I go to bed.   I know that it’s my fault for the death of my sister.‖

                                   II. STANDARD OF REVIEW

       We review the juvenile court’s decision to transfer a juvenile from TYC to TDCJ

for an abuse of discretion.   In re F.D., 245 S.W.3d 110, 113 (Tex. App.–Dallas 2008, no

pet.); In re C.L., 874 S.W.2d 880, 886 (Tex. App.–Austin 1994, no writ). In deciding

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

if the court acted without reference to any guiding rules or principles. In re J.J., 276

S.W.3d 171, 178 (Tex. App.–Austin 2008, pet. denied); In re J.L.C., 160 S.W.3d 312,

313 (Tex. App.–Dallas 2005, no pet.). If ―some evidence‖ exists to support the juvenile


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court's decision, there is no abuse of discretion.    In re F.D., 245 S.W.3d at 113; In re

D.L., 198 S.W.3d 228, 229 (Tex. App.–San Antonio 2006, pet. denied); In re R.G., 994

S.W.2d 309, 312 (Tex. App.–Houston [1st Dist.] 1999, pet. denied). This Court will not

substitute its own judgment for that of the juvenile court, nor will we reverse the juvenile

court’s ruling merely because we disagree with its decision.      In re C.L., 874 S.W.2d at

886.

       Once TYC refers a person to the juvenile court for a transfer, the juvenile court is

required to hold a hearing to determine whether to transfer the person to the custody of

TDCJ for the completion of the person's sentence.             See TEX. FAM. CODE ANN.

§ 54.11(a), (i) (West Supp. 2010). In making this determination, the juvenile court may

consider a number of factors, including:

       the experiences and character of the person before and after commitment
       to the youth commission, 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 youth commission and prosecuting attorney, the
       best interests of the person, and any other factor relevant to the issue to be
       decided.

Id. § 54.11(k) (West Supp. 2010); see In re J.J., 276 S.W.3d at 178. ―The juvenile court

is not required to consider all of the factors, and the court is expressly allowed to

consider unlisted but relevant factors.‖ In re J.J., 276 S.W.3d at 178; see In re C.L., 874

S.W.2d at 886. Evidence of each factor listed is not required, and the juvenile court is

free, within its discretion, to assign different weights to the factors it considers.    In re

J.J., 276 S.W.3d at 178.

                                             6
                                        III. ANALYSIS

       In P.D.M’s only issue, he challenges the juvenile court’s decision to transfer him to

TDCJ, arguing, specifically, that the court abused its discretion because the evidence at

the hearing ―strongly supported the release of P.D.M. to adult parole,‖ and the evidence

―all but established that the community would be safe were P.D.M released on adult

parole.‖ We disagree.

       The trial court heard evidence about the violent nature of the underlying offense

and that before entering TYC, P.D.M. was prone to bullying others and had, on at least

one other occasion, ―dry-fired‖ a shotgun at other children. The trial court also heard

testimony that P.D.M. had not accepted full responsibility for his role in his sister’s death,

and this often indicated a higher recidivism rate in violent offenders.    See In re J.J., 276

S.W.3d at 180 (noting that ―there was evidence that the offenses for which [the

defendant] had been adjudicated delinquent were violent crimes involving deadly

weapons and that [he] refused to accept full responsibility for the offenses he had

committed‖ and concluding that this was sufficient to justify the trial court’s transfer of the

defendant to TDCJ).

       We recognize that there was some evidence tending to indicate that P.D.M. had

made significant progress while at TYC. However, this does not negate the factors in

the family code for which the trial court heard evidence in support of transfer to TDCJ.

See id. at 178 (explaining that the juvenile court is within its discretion in assigning

whatever weight it deems appropriate to the factors listed in the family code).      Similarly,


                                              7
the fact that P.D.M. seemed to take responsibility for his sister’s death in a note written

during the hearing does not necessarily negate Dr. Brownlow’s testimony that P.D.M.

had not truly accepted responsibility because the court is the sole judge of the credibility

of the witnesses and was free to disbelieve P.D.M.’s statement.       See In re A.M., 333

S.W.3d 411, 417 (Tex. App.–Eastland 2011, pet. filed).         Additionally, the trial court

heard testimony that TYC ―strongly‖ recommended that P.D.M. be transferred to TDCJ.

See TEX. FAM. CODE ANN. § 54.11(k) (allowing the trial court to consider ―the

recommendations of the youth commission and prosecuting attorney‖).

       Because there was some evidence on which the trial court could have properly

based its ruling, we cannot say the trial court acted without reference to guiding rules and

principles in its determination that P.D.M. be transferred to TDCJ.     See In re J.J., 276

S.W.3d at 178; In re J.L.C., 160 S.W.3d at 313; In re F.D., 245 S.W.3d at 113; In re D.L.,

198 S.W.3d at 229; In re R.G., 994 S.W.2d at 312. Accordingly, we find no abuse of

discretion, and P.D.M.’s issue on appeal is overruled.

                                     IV. CONCLUSION

       Having overruled P.D.M.’s only issue on appeal, we affirm the trial court’s order

transferring P.D.M. to TDCJ.


                                                         ________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


Delivered and filed the
16th day of June, 2011.

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