in the Matter of D.K., a Child ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00119-CV
___________________________
IN THE MATTER OF D.K., A CHILD
On Appeal from County Court at Law No. 1
Denton County, Texas
Trial Court No. JV-2013-00432
Before Kerr, Birdwell, and Bassel, JJ.
Opinion by Justice Birdwell
OPINION
Appellant D.K. was placed on probation in 2013 for aggravated sexual assault of
a child, and the juvenile court deferred any decision on whether to require him to
register as a sex offender. In 2019, after appellant committed a series of nonsexual
criminal acts, the trial court reconsidered and required him to register after all.
Appellant argues that the juvenile court lacked jurisdiction because it rendered
the registration order three years after he successfully completed probation and sex
offender treatment. In the alternative, he argues that the trial court abused its discretion
by relying solely on nonsexual criminal acts as the basis for registration.
We hold that neither the completion of treatment nor the lapse of time destroyed
jurisdiction. We further hold that appellant’s subsequent criminal offenses—marked as
they were with violence and predatory behavior—and other risk factors justified the
trial court’s decision. We therefore affirm.
I.
On September 24, 2013, appellant was found to be a child who engaged in
delinquent conduct, namely, aggravated sexual assault of a child under the law of parties.
The juvenile court placed appellant on probation for two years and ordered him to
undergo sex offender treatment. At appellant’s request, the juvenile court deferred its
decision on whether to require appellant to register as a sex offender.
Appellant was unsuccessfully discharged from outpatient treatment, and after he
committed a new offense—assault against his sister—the State moved to modify his
2
probation. By agreement of the parties, appellant’s community supervision was
extended for an additional two years, and he was placed at Pegasus Schools for inpatient
sex offender treatment. He successfully completed that program in April 2016, and his
probation ended in August 2016. The juvenile court did not reconsider its previous
deferral concerning sex offender registration.
But in 2018, appellant once again found himself before the juvenile court when
he was charged with two new offenses: terroristic threat and assault against his brother-
in-law. He was again placed on probation, which was to last until his eighteenth
birthday. While on probation, appellant was alleged to have committed two more
offenses: continuous family violence, for which he was jailed, and harassment of a
public servant while in jail.
On January 10, 2019, the State filed a motion to require appellant to register as a
sex offender. After hearing the evidence, the juvenile court granted the motion,
required appellant to register, and entered detailed findings and conclusions. He
appeals.
II.
In his first issue, appellant argues that the juvenile court lacked jurisdiction to
revisit its deferred decision. He argues that the statute grants the juvenile court
jurisdiction to reconsider a deferred registration only during treatment or “on the
successful or unsuccessful completion of treatment”; appellant interprets this language
to mean that jurisdiction terminates after completion of treatment. According to
3
appellant, the juvenile court therefore lacked jurisdiction because appellant successfully
completed treatment years beforehand.
Appellant’s argument presents a question of statutory interpretation that we
review de novo. Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019). In
construing statutes, our primary objective is to give effect to the legislature’s intent. Id.
We interpret statutes according to the language the legislature used, absent an absurd
result or a context indicating a different meaning. Id.
Generally, a juvenile adjudicated delinquent for aggravated sexual assault is
required to register as a sex offender with law enforcement authorities. Tex. Code Crim.
Proc. Ann. arts. 62.001(5)(A), .051(a). But on a juvenile’s request, the juvenile court
must conduct a hearing to determine whether the juvenile’s and the public’s interests
require an exemption from registration. Id. art. 62.351(a). After the hearing, the juvenile
court may render an order deferring a decision on whether to require registration until
the respondent has completed treatment for the sexual offense as a condition of
probation. Id. art. 62.352(b)(1).
Appellant’s argument hinges on the language of the statutory provision that sets
the terms by which the juvenile court may reconsider registration following a deferral.
The provision in question states that if the court defers a decision on registration,
the court retains discretion and jurisdiction to require, or exempt the
respondent from, registration under this chapter at any time during the
treatment or on the successful or unsuccessful completion of treatment,
except that during the period of deferral, registration may not be required.
Following successful completion of treatment, the respondent is
4
exempted from registration under this chapter unless a hearing under this
subchapter is held on motion of the prosecuting attorney, regardless of
whether the respondent is 18 years of age or older, and the court
determines the interests of the public require registration.
Id. art. 62.352(c). To appellant, the first sentence creates a limitation on jurisdiction.
As he reads it, the phrase “the court retains discretion and jurisdiction . . . on the
successful or unsuccessful completion of treatment” means that the court loses
jurisdiction after the completion of treatment.
To reach the construction that appellant desires, though, we would need to
replace one of two words: “retains” or “on.” For instance, if we replaced the word
“retains” with a word such as “loses,” then this provision would clearly mean that the
court loses jurisdiction on the completion of treatment. The same construction might
be called for if we replaced the word “on” with “until,” as in “the court retains
discretion and jurisdiction . . . until the successful or unsuccessful completion of
treatment.” But that is not what the statute says.
Rather, the statute uses the words “retains” and “on,” and we presume that these
words were used for a reason. See City of Richardson v. Oncor Elec. Delivery Co. LLC, 539
S.W.3d 252, 260 (Tex. 2018). In this context, the meaning of the word “retains” is self-
evident, and the word “on” is most likely a reference to what occurs when something
is done, such as “on arriving home, I found your letter”; one dictionary defines “on” as
a word used “to indicate a time frame during which something takes place or an instant,
action, or occurrence when something begins or is done.” On, Webster’s Ninth New Collegiate
5
Dictionary 823 (1991) (emphasis added). And the statute clearly specifies what is to
occur when treatment is done: “the court retains discretion and jurisdiction.” Tex.
Code Crim. Proc. Ann. art. 62.352(c). Under its most natural reading, then, this
provision is not a limitation upon jurisdiction, but an assurance of it.
This reading is reinforced by comparison with the next sentence, which, again,
provides that “[f]ollowing successful completion of treatment,” the juvenile is
exempted from registration unless a hearing is held on the State’s motion and the
juvenile court determines that public interest requires registration. Id. If jurisdiction
terminated after successful completion of treatment, as appellant suggests, that
outcome could not be squared with the next sentence’s provision that after successful
completion of treatment, the court may hold a hearing to determine whether
registration should be required. Courts without jurisdiction are not often called upon
by the legislature to hold hearings.
In our view, this interpretation is also sound policy. The registration exemption
for juveniles is a clemency, to be applied based on the competing equities of public
safety and personal hardship. See id. art. 62.352(a). This clemency is a matter of
discretion that may in some cases be best exercised with a full view of the youth’s
character and the case’s substance as they are revealed over time—not, by necessity,
immediately upon the completion of treatment. See id. art. 62.352(c). In this case, for
instance, compelling the juvenile court to make its determination immediately following
appellant’s successful completion of treatment and seeming progress at Pegasus Schools
6
might have yielded one resolution of the matter. But allowing the juvenile court to
reserve judgment led the court to reach a different conclusion based on a more fully
developed set of facts. Three years—and four offenses—later, that seems to have been
the wiser course.
For these reasons, we hold as our sister courts have: the juvenile court’s
jurisdiction to reconsider a deferred registration decision does not terminate following
the completion of treatment, and the delay in this case, while not to be applauded, did
not destroy jurisdiction. See In re R.A., 465 S.W.3d 728, 738 (Tex. App.—Houston
[14th Dist.] 2015, pet. denied) (“Nonetheless, the statute does not provide a specific
deadline for the State to file a motion or for a hearing to be held. We conclude that the
seven-and-a-half[-]month delay did not cause the Juvenile Court to lose jurisdiction to
determine whether R.A. should be required to register as a sex offender . . . .”); In re
J.M., No. 12-10-00159-CV, 2011 WL 6000778, at *1, *3 (Tex. App.—Tyler Nov. 23,
2011, no pet.) (mem. op.) (holding that the juvenile court had jurisdiction to require a
juvenile to register as a sex offender, even though the State did not file its motion until
four-and-a-half months after the juvenile completed treatment). We overrule
appellant’s first issue.
III.
In his second issue, appellant contends that the juvenile court abused its
discretion by ordering him to register as a sex offender. He submits that in the years
since the aggravated sexual assault, he committed no further sexual offenses and
7
showed no further signs of sexual deviance. Appellant insists that in light of his
subsequent track record, the juvenile court exceeded its discretion by determining that
the public interest required registration.
To avoid sex offender registration, the juvenile bears the burden to show by a
preponderance of the evidence that protection of the public is not increased by
registration or that any potential increase in protection of the public is clearly
outweighed by the anticipated substantial harm to the juvenile and the juvenile’s family
that would result from registration. In re Z.P.H., No. 02-13-00188-CV, 2014 WL
670203, at *2 (Tex. App.—Fort Worth Feb. 20, 2014, no pet.) (mem. op.).
As we have explained the standard of review,
In an appeal from an order requiring sex-offender registration, our
standard of review is whether the juvenile court abused its discretion in
requiring registration. In our abuse-of-discretion review, we ask whether
the juvenile court (1) had sufficient information upon which to exercise
its discretion and (2) erred in its application of discretion. We answer the
first question under the well-trod principles of a sufficiency-of-the-
evidence review. . . .
If sufficient evidence exists, we then determine under the second
inquiry whether the juvenile court made a reasonable decision or an
arbitrary one, i.e., a decision made without reference to guiding rules or
principles. If the juvenile court did not enter specific findings, we examine
the implied findings supporting the court’s decision to require registration.
Id. (cleaned up) (quoting In re J.T.W., No. 02-12-00430-CV, 2013 WL 3488153, at *2
(Tex. App.—Fort Worth July 11, 2013, no pet.) (mem. op.)); see In re C.J.H., 79 S.W.3d
698, 702 (Tex. App.—Fort Worth 2002, no pet.) (holding that legal and factual
sufficiency of the evidence are relevant factors in assessing whether the trial court
8
abused its discretion in a juvenile delinquency case). The mere fact that a trial judge
may decide a matter within his discretionary authority in a different manner than an
appellate judge in a similar circumstance does not demonstrate an abuse of discretion.
Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (per curiam).
The trial court’s detailed findings, which are supported by the evidence, reveal
that appellant’s troubles began as early as age ten, when he was twice placed in a mental
institution to address his fits of rage, his attacks against his brother, and his throwing
of knives. In 2013, appellant at age eleven committed the offense which led to his initial
term of probation and outpatient treatment: he had held a knife to a ten-year-old girl’s
throat while another boy sexually assaulted her. Following reports that he had
threatened his brother with a knife, he was unsuccessfully discharged from outpatient
treatment. And after appellant assaulted his sister and violated other terms of his
community supervision, the term of his probation was extended and he was placed in
inpatient treatment at Pegasus Schools.
Appellant showed little progress in his first year at Pegasus. Staff regularly made
notations such as “maximum risk for ongoing deviant fantasy,” “ongoing secret
keeping,” and “threatening peers and staff with killing them.” The tide seemed to turn
in fall 2015, when providers began to make notations such as “moderate” and then
“high overall progress in treatment,” “minimum risk for ongoing secret keeping and
ongoing deviant fantasy,” and the like. The notations continued to become more
positive until his successful discharge in 2016. Appellant was assessed with a low risk
9
to reoffend in an evaluation performed at discharge, though one part of the summary
warned of his continuing “unwillingness to control his impulses (sexual and criminal).”
His providers recommended weekly outpatient treatment, and appellant successfully
completed that as well. His probation came to an end in August 2016. It was
undisputed that appellant had not committed any sexually oriented violations of the
terms of his probation.
However, appellant’s troubles began to resurface in October 2016, when
appellant was returned to a mental hospital for treatment. By the time of his arrest in
December 2018, appellant had been admitted for inpatient psychiatric care an estimated
fifteen times over the past two years. Appellant’s parents had started sleeping in shifts
so that one would always be awake in the event that appellant had a manic episode
during the night. The most dramatic episode occurred in March 2018, when appellant
engaged in a forty-five-minute standoff with police in which he held a piece of glass to
his neck, threatening to slit his own throat. In these years, appellant began using
marijuana, K2, and alcohol as well.
Appellant’s therapeutic prognosis also darkened. One provider noted that
appellant was capable of becoming violent and violating the rights of others, and that
these traits had “intensified” as he had grown older. A November 6, 2018 assessment
diagnosed him with a “high” risk to reoffend, finding that he had several risk factors
for criminal behavior such as emulating antisocial peers, blaming others for or
minimizing his bad behavior, lacking empathy for his victims, and becoming excited or
10
stimulated when committing crimes. Another assessment by a licensed sex offender
treatment provider found that he had a high risk to reoffend violently and a moderate
risk to reoffend sexually.
Appellant also accrued new criminal charges. According to appellant’s probation
officer, he had been following his ex-girlfriend “quite a bit,” and she was attempting to
avoid him. Appellant began threatening her and left cell phones on her porch with
audio recordings in which he outlined plans to kill himself. After being ejected with a
criminal trespass warning from the trailer park where his ex-girlfriend lived, appellant
would stand at the property line and stare at her or “other children” for “hours on end.”
One day as she attempted to avoid him, appellant’s ex-girlfriend ducked into a house
and called someone to pick her up. As she fled, appellant chased the vehicle with some
sort of weapon, possibly a BB gun. For his conduct, appellant was charged with
terroristic threat.
In another episode, appellant confronted his mother. As appellant screamed in
her face, his brother-in-law attempted to intervene, and appellant attacked him and had
to be wrestled to the ground. Appellant was charged with assault family violence. For
these offenses, appellant was placed on probation until his eighteenth birthday.
While on probation, appellant was alleged to have committed two more offenses.
Appellant became angry while watching a Dallas Cowboys game and threw an ashtray
at the television. Appellant and his father began to fight, and appellant was arrested for
11
assault. While in jail, appellant spit in a guard’s face, thereby allegedly committing the
offense of harassing a public servant.
Appellant acknowledges these new offenses but insists that they do not justify
the juvenile court’s decision to require registration. He says that these new offenses—
all of which are nonsexual—do not align with the safety concerns that justify sex
offender registration. According to appellant, sex offender registration “is specifically
limited to certain offenses that have a nexus in sexual behavior,” and by relying on
nonsexual conduct to trigger registration, the juvenile court was “dishonoring” the spirit
of the law and abusing its discretion.
First, we disagree with the premise of appellant’s argument. Appellant’s own
expert agreed that the risk to reoffend on a sexual offense was not limited solely to
sexually oriented warning signs. Moreover, many Texas courts have considered
nonsexual risk factors in determining whether a juvenile court abused its discretion by
requiring registration. In one case, the Tyler Court of Appeals upheld registration,
relying in part on the appellant’s membership in a criminal street gang, his history of
physical aggression, his threats to commit a school shooting and to “go to jail for
murder,” his “significant mental illness,” and a negative assessment from his counselor.
In re S.M., No. 12-12-00264-CV, 2013 WL 1046891, at *3 (Tex. App.—Tyler Mar. 13,
2013, no pet.) (mem. op.). In another case, the Eastland Court of Appeals relied almost
exclusively on nonsexual risk factors to justify registration, citing testimony that some
of these risk factors increased the appellant’s risk to reoffend sexually:
12
Appellant continued to abuse drugs and had not completed his sex
offender treatment despite multiple chances over the course of two years.
Both his juvenile probation officer and his sex offender therapist testified
that substance abuse and failure to complete treatment increase a sex
offender’s risk of re-offending. In view of his convictions for theft of
person (the robbery charge was reduced) and evading arrest, his multiple
violations of both his juvenile and adult probations, his continued use of
drugs, his second arrest for another robbery and evading arrest, and his
failure to complete sex offender treatment, the trial court was well within
its discretion to find that appellant should publicly register as a sex
offender[.]
In re C.G.M., No. 11-12-00031-CV, 2012 WL 2988818, at *3 (Tex. App.—Eastland July
19, 2012, no pet.) (mem. op.). And this court has upheld a decision to require
registration based in part on an appellant’s repeated failures to “maintain . . . self-
control,” his general downward “spiral[],” and his inability to “safely function in the
community”; viewing these risk factors in light of the appellant’s previous history of
holding a knife at a nine-year-old girl’s throat while she was raped, among other sexual
misdeeds, we felt assured that the decision to require registration was not made without
reference to guiding rules and principles. See Z.P.H., 2014 WL 670203, at *3.
Second, even if we were to entertain appellant’s argument that there must be
some “nexus” between the conduct that guides a registration decision and prurient
affairs, appellant has neglected another aspect of his case that has an unquestionable
nexus with sex offender registration: he pleaded guilty to aggravated sexual assault of
a young girl, an offense for which registration is normally required. Tex. Code Crim.
Proc. Ann. art. 62.001(5)(A). Appellant held a knife to a girl’s throat as she was raped
when he was eleven years old, and appellant’s assaultive offenses and aggressive
13
behavior might have persuaded the juvenile court that the same violent streak was
undiminished after years of treatment and probationary allowances. It was appellant’s
burden to demonstrate that he posed a low risk to the public in general or relative to
the burden that registration would place on him and his family. Id. arts. 62.351(b),
.352(a). Appellant’s violence (especially with regard to his sister and other women), his
repeated criminal offenses (especially his alarming conduct with regard to his ex-
girlfriend), and his bleak therapeutic prospects (especially his recent assessment of a
moderate risk to sexually reoffend) could have rationally convinced the juvenile court
that this burden was not satisfied. In light of this evidence and the trial court’s
thoughtful findings based on that evidence, we hold that the juvenile court had
sufficient information upon which to exercise its discretion and that the court acted in
careful observance of guiding rules and principles. See Z.P.H., 2014 WL 670203, at *2.
So holding, we overrule appellant’s second issue.
IV.
We affirm the juvenile court’s order.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: October 31, 2019
14