


Opinion issued January 2, 2003







                                                                                                                   

  





In The
Court of Appeals
For The
First District of Texas
 

 
 
NO. 01-02-00525-CV
____________
 
IN THE MATTER OF C.D.T., III
 

 
 
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 97-05875J
 

 
 
O P I N I O N
          In three points of error, C.D.T. argues the trial court erred when it transferred
him from the Texas Youth Commission (TYC) to the Texas Department of Criminal
Justice—Institutional Division (TDCJ-ID).  Specifically, appellant argues (1) the trial
court was required to conduct a “gate keeper” hearing relative to appellant’s
objections to the evidence, (2) the evidence was insufficient to support the transfer,
and (3) the trial court erred when it failed to provide C.D.T. with some of the TYC
documents.  We affirm.
Background
          On January 21, 1998, appellant was found to have engaged in delinquent
conduct as a result of his commission of an aggravated robbery.  During the first four
years of his five-year commission to the TYC, appellant was involved in 95
additional acts of misconduct and was placed in security 30 times.  Appellant escaped
from a TYC facility on one occasion, and he was accused of committing seven
assaults, two of which were on TYC staff members.
          The TYC filed a motion requesting that appellant be transferred from TYC to
TDCJ-ID for the remainder of his five-year sentence.  During the hearing on TYC’s
motion to transfer, the trial court heard testimony from Tom Gorsuch, Ph.D., a
psychologist and Linda Wittig, M.D., a psychiatrist.  Both had examined appellant
and advised the trial court against the transfer.  Dr. Wittig noted in her report that
appellant had obtained his GED and had even taken some college courses since his
commission to the TYC.  She recognized that appellant had received certificates in
welding, small engines and repair, auto mechanics, building trades, and horticulture
in addition to numerous other vocational programs.  Dr. Wittig described appellant
as having a “Conduct Disorder, perhaps of the Childhood Onset Type,” but she
ultimately concluded that transfer to TDCJ-ID would not be necessary.
          The court also heard testimony from Leonard Cucolo, the court liaison for the
TYC.  Cucolo testified that appellant’s two TYC psychologists were Dr. Barton and
Dr. Linda Knight, and Cucolo provided the court with appellant’s TYC records.  The
TYC’s summary report concluded that appellant was “seen as a high risk to reoffend.” 
The trial court asked Cucolo why the TYC waited until four years of a five-year
commission had expired to consider transferring appellant.  Cuculo explained that,
after three years of commission, appellant was eligible for parole.  Once the TYC
evaluated him for parole, Dr. Barton determined appellant was a threat to society.  
          Lastly, the trial court heard from Joyce Taylor, appellant’s mother.  Taylor
testified her son expressed remorse, and she had a job for him once he got out of the
TYC.  She admitted, however, that despite her support in the past, appellant
continued to get in trouble. 
          The trial court transferred appellant to TDCJ-ID, and he appeals the transfer.
“Gate Keeper”
          In point of error one, appellant argues the trial court was required to conduct
a “gate keeper” hearing relative to appellant’s objections and challenges to the
relevance and reliability of the evidence and opinions of the TYC representatives
prior to the admission of their opinions into evidence.
          Appellant filed a “Notice of Objection to Introduction of Testimony as
Provided under Daubert, Robinson, and Kelly and Request for ‘Gate Keeper’
Hearing,” and he re-urged his objection at the transfer hearing. 
          In his appellate brief, appellant identified the objectionable testimony found in
the State’s exhibits as follows:
1.The admission of Dr. Barton and Dr. Knight’s reports into
evidence over contrary evidence;
 
          2.       Dr. Barton’s opinion regarding appellant’s lack of remorse;
 
3.Inaccurate information presented by TYC, some of which was
based upon a review of and re-hash of another psychologist’s
prior work;
 
4.The TYC psychologist reports that were put into evidence,
incorrectly and improperly diagnosed appellant, who did not meet
the diagnosis for Anti-Social Personality Disorder or Conduct
Disorder; and 
 
5.The methodology of a psychological interview of appellant would
have a big influence on the results of an assessment and
evaluation.

Further, he argues that, as a direct result of the trial court’s refusal to conduct a “gate
keeper” hearing and its decision to overrule appellant’s objections to the testimony,
appellant was deprived of (1) the right to a “fundamental” fair hearing, (2) the right
to have compliance with applicable case law under Daubert, DuPont, Kelly, and
Nenno, (3) the right to confront the witness against him, and (4) the right of due
process.  
          The release or transfer hearing is a “second chance hearing” after appellant has
already been sentenced to a determinate number of years.  It is not part of the
guilt/innocence determination, consequently it need not meet the extensive due
process requirements of an actual trial.  In re D.S., 921 S.W.2d 383, 387 (Tex.
App.—Corpus Christi 1996, writ dism’d w.o.j.).  During such a hearing, the trial
court may consider written reports from probation officers, professional court
employees, or professional consultants, in addition to the testimony of the witnesses. 
Tex. Fam. Code Ann. § 54.11(d) (Vernon Supp. 2002); C. D. R. v. State, 827 S.W.2d
589, 592 (Tex. App. —Houston [1st Dist.] 1992, no writ).  Furthermore, a juvenile
has no right of confrontation at a discretionary transfer hearing.  In re G.B.B., 638
S.W.2d 162, 164 (Tex. App.—Houston [1st Dist.] 1982, no writ).  A juvenile is not
entitled to a jury trial at the transfer hearing and the juvenile court may consider
hearsay in the form of reports and evaluations.  In re E.D.M., 916 S.W.2d 9, 11 (Tex.
App.—Houston [1st Dist.] 1995, no writ).  Therefore, we hold the appellant's
constitutional rights were not violated by the admission of any hearsay or allegedly
unreliable evidence in this case.
          We overrule point of error one. 
 
Sufficiency
          In point of error two, appellant contends the case should not be reviewed under
an abuse of discretion standard of review and the evidence was insufficient under any
applicable standard.
          Appellant, citing In re T.D.H., 971 S.W.2d 606, 610 (Tex. App.—Dallas 1998,
no writ); K.L.M. v. State, 881 S.W.2d 80, 84 (Tex. App.—Dallas 1994, no writ);
C.D.R. v. State, 827 S.W.2d 589, 592-93 (Tex. App.—Houston [1st Dist.] 1992, no
pet), concedes that “the law indicates that a transfer order would be reversed for abuse
of discretion.”  On appeal, however, he asserts that an abuse of discretion standard
is not the appropriate standard, and he argues the case should be reversed because the
evidence is legally and factually insufficient to support the trial court’s decision.
          We will follow the existing case law which uniformly holds that, when
reviewing the trial court’s decision to transfer a juvenile from TYC to the TDCJ, the
reviewing court employs an abuse of discretion standard.  See In re J.M.O., 980
S.W.2d 811, 812-13 (Tex. App.—San Antonio 1998, no pet.).  The reviewing court
must view the entire record to determine if the trial court acted without reference to
guiding rules and in an arbitrary manner.  Id. at 813.  If some evidence exists to
support the trial court’s decision there is no abuse of discretion.  In re R.G., 994
S.W.2d 309, 312 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).
          Appellant re-urges his complaint that the trial court erred when it allowed the
TYC reports and Cucolo’s testimony that was “derived from the reports.”  He claims
that, when this “inadmissible evidence is excised from the record, there is no evidence
to support the Order of the trial court.”
           Because we hold the evidence was properly before the trial court, we must now
review the evidence to determine if some evidence exists to support the trial court’s
decision.  The trial court heard testimony that, during the first four years of his five-year commission to the TYC, appellant was involved in 95 additional acts of
misconduct and was placed in security 30 times.  Appellant escaped from a TYC
facility on one occasion, and he was accused of committing seven assaults, two of
which were on TYC staff members.
          Some evidence exists to support the trial court’s decision, therefore, there was
no abuse of discretion.  See R.G., 994 S.W.2d at 312.
          We overrule point of error two.
Failure to Provide Documents
          In point of error three, appellant argues the trial court’s failure to provide
counsel with the TYC documents in the court’s file, which may have been considered
by the trial court, requires reversal.
          Section 54.11(d) of the Texas Family Code provides that, at least one day
before the release or transfer hearing, the court shall provide a defendant’s counsel
with access to all written matter to be considered by the court.  Tex. Fam. Code Ann.
§ 54.11(d).  Here, appellant complains of a series of letters Cucolo sent to the trial
court after the initial commencement of the hearing, but before the final determination
of the motion.  The letters were some of appellant’s correspondence intercepted while
appellant was in county jail awaiting the conclusion of his transfer hearing.
          We abated the case for a hearing for the trial court to make a finding of fact
indicating whether, in making its transfer decision, it considered the four letters.  The
trial court’s finding states, it “does not know whether [it] considered those four items
of appellant’s correspondence.”
 
          Despite its equivocation, assuming the trial court did in fact consider the
documents, appellant has presented no evidence or even argument that he was harmed
by the trial court’s alleged consideration of the four letters.
 See Tex. R. App. P. 44.
          We overrule point of error three.
Conclusion
          We affirm the judgment.
 
                                                                        Frank C. Price 

                                                                        Justice

Panel consists of Justices Taft, Alcala, and Price.

Publish.  Tex. R. App. P. 47.




















