In the Matter of B.R. v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00363-CV
___________________________
IN THE MATTER OF B.R.
On Appeal from the 323rd District Court
Tarrant County, Texas
Trial Court No. 323-113215-20
Before Sudderth, C.J.; Bassel and Womack, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
Appellant B.R., who was adjudicated delinquent at age sixteen, appeals the sex-
offender registration order that was rendered after he turned eighteen. In two issues,
he argues that the juvenile court lacked jurisdiction to render the sex-offender
registration order after he turned eighteen and that the juvenile court abused its
discretion by rendering such order because, among other arguments, the evidence is
factually insufficient. Because the plain language of the statute states that a juvenile
court has jurisdiction to render a sex-offender registration order after a juvenile turns
eighteen and because we hold that the juvenile court did not abuse its discretion by
rendering the order, we affirm.
II. Background
In October 2020, the juvenile court found that sixteen-year-old B.R. had
engaged in conduct at the age of thirteen that, if committed by an adult, would have
constituted the felony offenses of aggravated sexual assault of a child (two counts)
and of sexual performance of a child under fourteen years old (one count). The
juvenile court (1) found that B.R. was a child in need of rehabilitation and that it was
in his best interest that he be placed on probation until his eighteenth birthday and
(2) ordered that he successfully complete a licensed sex-offender treatment program.
At that time, the juvenile court deferred sex-offender registration for B.R.
2
On what was intended to be his last day of sex-offender counseling, B.R. tested
positive for marijuana. Shortly thereafter, in March 2022, B.R. was arrested for
another sexual charge: public lewdness. B.R. was then unsuccessfully discharged
from sex-offender treatment.
In April 2022, B.R. turned eighteen.
One week after B.R.’s eighteenth birthday, the State filed a motion to order
sex-offender registration. In response, B.R. filed a “Motion To Retain Exemption
From Sex[-]Offender Registration.” Both B.R. and the State later filed briefs in
support of their motions. The juvenile court held an evidentiary hearing and granted
the State’s motion to register. B.R. then perfected this appeal.
III. Jurisdiction to Render Sex-Offender Registration Order
In his first issue, B.R. argues that pursuant to Texas Code of Criminal
Procedure Article 62.352(c), the juvenile court lacked jurisdiction to render its order
requiring him to register as a sex offender after he turned eighteen.1 B.R. recognizes
that we have previously analyzed this statute and have held that “the juvenile court’s
jurisdiction to reconsider a deferred[-]registration decision does not terminate
following the completion of treatment.” See In re D.K., 589 S.W.3d 861, 865 (Tex.
App.—Fort Worth 2019, pet. denied). He argues that
1
B.R. acknowledges that based on his “adjudication for delinquent, sexual
conduct, he was required to register as a sex offender unless the juvenile court chose
to defer a decision on whether to require his registration.”
3
[t]his [c]ourt should revisit its prior construction of [A]rticle 62.352(c),
and after applying the appropriate principles of construction as urged
here by B.R. and giving fair effect to the [Texas] Legislature’s precise
word choice within the statute as a whole,[2] this [c]ourt should now
confirm that [A]rticle 62.352(c) does not extend jurisdiction for a
juvenile court to order sex-offender registration after the juvenile reaches
the age of majority in the single situation where the juvenile
unsuccessfully completes [sex-offender] treatment.
Although this case differs from D.K. in that the juvenile in D.K. successfully
completed a sex-offender treatment program, we see no need to reconsider our prior
construction of Article 62.352(c) when the plain language of the statute provides a
juvenile court with jurisdiction to order sex-offender registration after a juvenile’s
eighteenth birthday.
A. Standard of Review and Applicable Law
In D.K., we set forth the standard of review and applicable law:
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
2
Specifically, B.R. contends that in D.K., we failed to read Subsection (c) of
Article 62.352 as a whole to afford proper meaning to each phrase within the context
of the entire subsection, that we used an incorrect definition of “on” in our analysis of
the statute, and that we rationalized our interpretation of the statute by opining that
our interpretation was “sound policy.” See 589 S.W.3d at 865.
4
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).
Id. at 864.
Article 62.352(c) describes when a juvenile court may order sex-offender
registration after initially deferring such registration:
If the court enters an order described by Subsection (b)(1) [deferring
sex-offender registration “until the respondent has completed treatment
for the respondent’s sexual offense as a condition of probation”], 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 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. Not later than the 10th day
after the date of the respondent’s successful completion of treatment,
the treatment provider shall notify the juvenile court and prosecuting
attorney of the completion.
Tex. Code Crim. Proc. Ann. art. 62.352(c) (emphasis added).
B. Analysis
As noted in the State’s brief,
[B.R.’s] foundational contention that a juvenile court’s jurisdiction
expires once the juvenile becomes 18 years old relies heavily on In re
N.J.A., 997 S.W.2d 554 (Tex. 1999). That holding, which predated [the]
enactment of Article 62.352, is no longer good law, as discussed by
another decision relied upon by [B.R.] See In re R.A., 465 S.W.3d 728,
735 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (and cases
5
cited therein). In . . . R.A., the court held that “the duty to register as a
sex offender arises from Chapter 62, and R.A.’s duty to register or any
exemption therefrom is not part of the disposition that terminated on
R.A.’s eighteenth birthday.” [Id.] at 736.
....
The Texas Code of Criminal Procedure provides for ongoing
jurisdiction for a juvenile court that has deferred decision on whether to
require [sex-offender] registration. Paragraphs (b)(1) and (c) of Article
62.352, read together, provide that a juvenile court may defer decision
on requiring registration until the respondent has had the opportunity to
complete sex[-]offender treatment without losing jurisdiction thereby.
Tex. Code Crim. Proc. [Ann.] art. 62.352[(b)(1)], (c). In cases of successful
completion of treatment, the court may not require registration without
first holding a hearing and determining that the public interest requires
registration. Tex. Code Crim. Proc. [Ann.] arts. 62.351, 62.352(c).
[Record references and footnote omitted.]
As we highlighted above, the wording of Article 62.352(c) specifically states that
juvenile courts retain jurisdiction to order sex-offender registration after initially
deferring such registration, even if a juvenile is unsuccessful in completing sex-
offender treatment: “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.” Tex. Code Crim. Proc. Ann. art.
62.352(c) (emphasis added).
Moreover, the cases that B.R. cites actually cut against his desired holding (i.e.,
that the offender who successfully completes treatment may be required to register as
a sex offender after his eighteenth birthday but that the offender who unsuccessfully
completes treatment is outside the juvenile court’s jurisdiction). For example, In re
6
J.M. dealt with the same scenario presented here: the juvenile court ordered a juvenile
who had unsuccessfully completed a sex-offender treatment program to register after
he turned eighteen, and the juvenile challenged the court’s jurisdiction. No. 12-10-
00159-CV, 2011 WL 6000778, at *2–3 (Tex. App.—Tyler Nov. 23, 2011, no pet.)
(mem. op.). The Tyler Court of Appeals explained its reasoning for holding that the
juvenile court had jurisdiction:
As the attorney general has noted, the statute does not specifically
address the unsuccessful completion of treatment. See Op. Tex. Att’y
Gen. No. GA–772 (2010).
J.M. unsuccessfully completed treatment on or about September
15, 2009. The Texas Youth Commission discharged him on September
22, 2009. It is reasonable, at least in some scenarios, that a child would
work on treatment until the end of his commitment to the youth
commission or until the end of his community supervision. Therefore,
whether the child can be said to have completed treatment or not
completed treatment would not be known until the end of the child’s
commitment, which in at least some cases would be when the child
reached the age of eighteen or nineteen. In such a situation, under J.M.’s
reading of the statute, a juvenile court would be empowered to address
the issue of registration only until the last day of the child’s commitment.
Or as applied to this case, because J.M. was not determined to have been
unsuccessful with his treatment until approximately a week before the
youth commission released him, the court would have been able to
address the registration issue only within the very narrow window
between the determination that he had failed to complete treatment and
his nineteenth birthday.
The legislature could have written the statute to require that result.
However, the legislature would not have expanded or provided
jurisdiction for the juvenile court to act if it intended the court to act
only during a time when it already had jurisdiction. Instead, with Article
62.352, the legislature provided that the juvenile court’s jurisdiction
extended for the duration of treatment or to the end, successful or
unsuccessful, of treatment. See Tex. Code Crim. Proc. Ann. art.
7
62.352(c). In this case, this additional grant of jurisdiction was sufficient
to allow the juvenile court to address the State’s motion following J.M.’s
unsuccessful completion of treatment.
Id. (footnote omitted). Similarly, R.A., which the State touched on in the portion of
its brief that is set forth above, cites J.M. and reaches the same conclusion:
Under the unambiguous language of [A]rticle 62.352(c), the [j]uvenile
[c]ourt had discretion and jurisdiction to require, or exempt R.A. from
registration under Chapter 62 “on the successful or unsuccessful
completion of treatment.” Tex. Code Crim. Proc. Ann. art. 62.352. The
statute provides that, following successful completion of treatment, the
respondent is exempted from registration as a sex offender unless a
hearing under subchapter H of Chapter 62 is held on the motion of the
prosecuting attorney. See id. Though [A]rticle 62.352(c) provides
jurisdiction to the juvenile court to require registration or exempt from
registration on the successful or unsuccessful completion of treatment,
the statute does not mention a presumed outcome or motion by the
State if the respondent unsuccessfully completes treatment. See id.Nonetheless, a sister court has held that, even if the respondent
unsuccessfully completes treatment, the State still may move for a
hearing under [A]rticle 62.352(c)[,] and the juvenile court still may
require registration under this statute. . . . J.M., 2011 WL 6000778, at
*1–3. We agree that, even if R.A. unsuccessfully completed treatment,
the State still may move for a hearing under [A]rticle 62.352(c) and [that]
the juvenile court still may require registration under this statute. See
Tex. Code Crim. Proc. Ann. art. 62.352(c); . . . J.M., 2011 WL 6000778,
at *1–3.
465 S.W.3d at 737–38. The R.A. court upheld a sex-offender registration order that
was issued when R.A. was eighteen. Id. at 732, 738, 745.
Based on the plain language of the statute, we see no reason to reach a different
conclusion than that reached in J.M. and R.A. Accordingly, we hold that the juvenile
court had jurisdiction to render the order requiring B.R. to register as a sex offender
after he turned eighteen. We therefore overrule B.R.’s first issue.
8
IV. No Abuse of Discretion in Rendering Sex-Offender Registration Order
In his second issue, B.R. contends that the juvenile court abused its discretion
by ordering him to register as a sex offender. B.R. makes a variety of arguments
within his second issue; we reject each for the reasons set forth below.
A. Burden of Proof and Standard of Review
To avoid sex-offender registration, the juvenile bears the burden to show by a
preponderance of the evidence (1) that protection of the public is not increased by
registration or (2) 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.); see also
Tex. Code Crim. Proc. Ann. art. 62.352(a) (setting forth the two factors).
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 . . . .[3]
If sufficient evidence exists, we then determine under the second
inquiry whether the juvenile court made a reasonable decision or an
3
In reviewing a factual-sufficiency challenge, we consider all of the evidence
and uphold the judgment unless it is so against the overwhelming weight of the
evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986).
9
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.
Z.P.H., 2014 WL 670203, at *2 (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
juvenile court 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. D.K., 589 S.W.3d at 866 (citing Quixtar Inc. v. Signature Mgmt.
Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010)).
B. What the Order States
The juvenile court rendered a nine-page order setting forth the law, the
evidence, and its findings. We set forth the evidence and the findings as stated in the
order:
Evidence
[B.R.’s] juvenile probation officer, Sara Saucedo, testified [that
B.R.] tested positive for THC at his final sex[-]offender treatment
counseling session. [B.R.] also admitted to Saucedo that he had used
marihuana, but “only on a couple of occasions” during his probation.
Saucedo also testified about a “lapse” in the family’s “safety plan.”
That incident involved [B.R.’s] grandparent[’s] leaving [B.R.] alone with
his younger siblings, a circumstance that was an unequivocal violation of
10
[B.R.’s] conditions of probation requiring adult supervision any time
[B.R.] was around children younger than a certain age. Saucedo and
[B.R.’s] sex[-]offender counselor addressed the “lapse” with [B.R.] and
his family.
Shortly after what was to have been his last sex[-]offender
counseling session, [B.R.] was arrested for having sexual intercourse with
his adult girlfriend in the backseat of a vehicle at a public park. This
incident, combined with his positive drug test, resulted in [B.R.’s]
unsuccessful discharge from sex[-]offender treatment.
[B.R.’s] sex[-]offender counselor, Christina Zamaniego, testified
[that B.R.’s] arrest for a new sex-related offense demonstrate[d] [that] he
continues to lack impulse control. Zamaniego criticized [B.R.] and his
family for allowing him to be alone, unsupervised, with his girlfriend.
Zamaniego believed [that B.R.’s] lack of impulse control might increase
his potential to engage [in] dangerous behavior in the future.
Zamaniego also testified about [B.R.’s] lack of complete
truthfulness and honesty during his counseling sessions. Zamaniego and
[B.R.] eventually worked through that problem.
[B.R.] testified [that] he believed [that] he should not have to
register as a sex offender. He believed registration would hurt him and
his parents.
In addressing his arrest for public lewdness,[4] [B.R.] characterized
his girlfriend as being the sexually aggressive partner. He claimed [that]
he merely lost control and was persuaded by his girlfriend to engage in
sexual intercourse once they “became unsupervised” at the park.
Intercourse was not his idea; he merely followed his girlfriend’s lead—
according to his testimony[.]
Elsewhere in his testimony [B.R.] similarly minimized his
culpability for the events that [had] led to his unsuccessful discharge
from sex[-]offender counseling. He portrayed himself as a victim of a
fellow student’s prank when he unknowingly accepted a marijuana-laced
brownie from a fellow student on the date of his last sex[-]offender
B.R. testified that the case was dismissed after he completed twenty-four hours
4
of community service. A copy of the dismissal order is included in the record.
11
counseling session. He told the court, “I was offered a brownie and
didn’t know it was laced.” He asserted [that] he [had] only accepted the
brownie from the student—whom [B.R.] could not fully name—because
he had not [eaten] breakfast that morning and was very hungry.
[Juvenile] Court’s Findings
The [c]ourt’s jurisdiction to rule upon the State’s [m]otion [t]o
[r]egister did not expire when [B.R.] turned eighteen. See . . . R.A., 465
S.W.3d at 736.
[B.R.’s] repeated efforts at minimizing his culpability for the
events that led to his unsuccessful discharge from treatment leads the
court to believe [that B.R.] is not a credible witness. Despite years of
counseling, [B.R.] still lacks impulse control. He continues to engage in
sexually risky behavior. His therapist provided compelling testimony
suggesting [that] she believes he may reoffend.
[B.R.] admitted to having continued unsupervised access to the
internet through online gaming consoles, a fact [that] only came to light
during the court’s questioning of [B.R.] His testimony suggested such
unfettered, unsupervised access [had] occurred before he turned
eighteen, in violation of his conditions of probation.
The evidence showed [that B.R.] did not successfully complete
sex[-]offender treatment. He was unsuccessfully discharged from
multiple treatment programs[] and fully completed none.
Accordingly, the court finds [that] the evidence does not support
a ruling favorable to [B.R.] The protection of the public would be
increased by requiring [B.R.] to register under Chapter 62. Any potential
increase in protection of the public resulting from registration is not
clearly outweighed by any anticipated substantial harm to [B.R.] and/or
his family that would result from registration under Chapter 62. [B.R.]
did not successfully complete the required sex-offender[ ]treatment
program. And the interests of the public require ordering [B.R.] to
register as a sex offender under Chapter 62. Cf. . . . D.K., 589 S.W.3d at
868 (citing . . . Z.P.H., . . . 2014 WL 670203, at *[4] . . . (respondent did
not meet his burden of proof)); In re [M.C.H.], No. 11-14-00330-CV, . . .
2016 WL 4131642, at *4 (Tex. App.—Eastland [July 28,] 2016, no pet.)
12
(mem. op.) (failure to complete counseling, moderate risk to reoffend
supported registration order).
The court hereby orders the respondent to submit to Chapter 62’s
sex[-]offender registration requirements.
C. Analysis
The juvenile court’s detailed findings, which are supported by the evidence,
reveal that the juvenile court had sufficient evidence upon which to exercise its
discretion and made a reasonable decision based on that evidence. As set forth above,
the juvenile court granted B.R.’s motion to defer sex-offender registration, which
requested that registration be deferred until he had an opportunity to participate in
and successfully complete a sex-offender treatment program. But after spending his
“entire time of probation in treatment,” when it came to what was supposed to be his
last sex-offender counseling session, B.R. tested positive for drugs. Not long after
that incident, he was arrested for public lewdness for having sex with his girlfriend in
the backseat of a vehicle in a park (near a playground) in the middle of the day. Based
on the positive drug test and his arrest for the new sex-related offense, B.R. was
unsuccessfully discharged from sex-offender treatment. Because B.R. did not
successfully complete treatment, he did not fall within Article 62.352(c)’s presumption
of exemption from sex-offender registration. Tex. Code Crim. Proc. Ann. art.
62.352(c) (“Following successful completion of treatment, the respondent is exempted
from registration . . . unless a hearing under this subchapter is held . . . and the court
determines the interests of the public require registration.” (emphasis added)).
13
Though the statute does not clearly state whether a hearing is required when
the respondent is unsuccessfully discharged from treatment, the juvenile court
concluded that a hearing was required. At that hearing, B.R. had 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. See Z.P.H., 2014 WL 670203, at *2. B.R.
initially acknowledges this burden in his brief but then argues what the State failed to
prove. The burden, however, did not shift to the State; it was B.R.’s burden, and he
did not carry it.
Although there was testimony that B.R.’s treatment had gone “very well until
the end,” the latter part of that statement points to why sex-offender registration was
necessary. B.R.’s own testimony revealed that despite having participated in both
group and individual counseling throughout his probation and having been given the
tools that he needed to succeed, he did not use them when he was at the park with his
girlfriend; instead, at the point when they “became unsupervised,” he “lost complete
control of the situation” and “didn’t think the situation thoroughly [sic].” B.R.
reoffended by committing another sex offense at the end of his sex-offender
treatment—treatment that he was required to successfully complete as a condition of
his probation for having been adjudicated delinquent for three prior sex offenses.
14
B.R.’s lack of impulse control, as demonstrated by the sexual offense at the
park, concerned his probation officer and his counselor. B.R.’s probation officer
believed that someone who has had sexual relations with a child and who
demonstrates poor sexual impulse control is a potential danger to the community.
When asked what sort of danger a person’s lack of impulse control brings to the
community, B.R.’s counselor stated, “Well, when someone with sexual behavior
problems acts on their impulses rather than thinking things through, they tend to put
themselves at a higher risk for being out in the community than somebody who stops
and thinks . . . about the consequences and how it affects other people.” This
constitutes some evidence to support the juvenile court’s finding that “[t]he
protection of the public would be increased by requiring [B.R.] to register under
Chapter 62.”
B.R.’s only attempts to counter this evidence—and thereby show that any
potential increase in protection of the public would be clearly outweighed by the
anticipated substantial harm to him and his family that would result from
registration—were his responses to the following two questions:
Q. Do you think [sex-offender registration] would hurt you?
A. Yes.
Q. Do you think it would hurt your parents as well?
A. Yes, sir.
15
B.R. did not elaborate on how he would be hurt, nor did he provide testimony that
there would be “substantial harm” to him and his family from the registration. B.R.
thus did not carry his burden to show by a preponderance of the evidence 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. Cf. R.A., 465 S.W.3d at 743–44 (rejecting claim that public safety need
was outweighed by testimony from juvenile’s mother, grandmother, and therapist as
to the mental and emotional harm that registration would cause, as well as impacts on
juvenile’s educational and career prospects).
B.R. further argues within his second issue that even assuming that
the evidence was not factually insufficient, the [trial] court erred in its
application of discretion by failing to properly consider the lack of any
need for public protection, the presumed harm to B.R. due to the State’s
late-filed motion to register him as a sex offender, and the “significant
gaps” and developmental differences identified by the United States
Supreme Court between juveniles and adults.
B.R. then fleshes out his three arguments, beginning with his argument that “the
evidence did not establish a firm showing that [he] was ‘at risk to relapse’ or ‘at an
increased risk to reoffend’” and that “the juvenile court’s legal conclusion that the
protection of the public would be increased by registration was an abuse of
discretion.” B.R. ignores that this court previously pointed out in D.K. that some
courts have “relied almost exclusively on nonsexual risk factors to justify registration”
and that this court has previously upheld a decision to require registration based in
16
part on an appellant’s repeated failures to “maintain . . . self-control,” his general
downward “spiral[],” and his inability to “safely function in the community.” See 589
S.W.3d at 868 (first citing 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 then citing Z.P.H., 2014
WL 670203, at *3). Here, the juvenile court had evidence of both nonsexual risk
factors (B.R.’s probation violations, which included a positive drug test, unsupervised
time with children in the household, and unsupervised time on electronic devices) and
sexual risk factors (his failure to successfully complete treatment and his arrest for
another sexual offense). Additionally, although B.R.’s counselor did not use the exact
terminology of “at risk to relapse” or “at an increased risk to reoffend,” she did state
that someone who has had sexual relations with a child and who demonstrates poor
sexual impulse control is a potential danger to the community.
B.R. next argues that the juvenile court “entirely failed to account for the
presumed harm that falls to both a juvenile and his family when there is unnecessary,
unexplained delay in the State[’s] filing a motion to require the juvenile’s sex-offender
registration after the juvenile’s 18th birthday.” B.R. cites and quotes R.A. for the
proposition that “as to the delay by the State in moving for a hearing under [A]rticle
62.352(c), ‘the interests of [the juvenile] and of the public are best served by a motion
by the State either during treatment or promptly thereafter.’” 465 S.W.3d at 738. Yet
B.R.’s argument does not make sense in light of the timing of the events here. We are
hard pressed to see how a one-month delay from the time that B.R. committed the
17
new offense (and was thereafter unsuccessfully discharged from treatment) until the
State filed its motion to order registration (which was filed only one week after B.R.’s
eighteenth birthday) constitutes presumed harm to him and to his family.
B.R.’s third argument, which is included throughout his brief and his reply
brief, contends that the juvenile court was under an obligation to take into account
“significant gaps” between juveniles and adults as identified by the United States
Supreme Court in Miller v. Alabama, 567 U.S. 460, 471, 132 S. Ct. 2455, 2464 (2012).
Due to such “significant gaps,” B.R. contends that the juvenile court “should have
properly found that [he] was entitled to exemption from sex-offender registration.”
The State responds with a variety of arguments, including the following:
[B.R.’s] arguments that the juvenile court failed to take [his] juvenile
status sufficiently into account are inapposite. Had [B.R.] been an adult
when he committed his sex offenses, he would have been subject to the
registration requirements of Chapter 62 without exemption. . . .
....
. . . Miller concerned the proper role of the defendant’s age when
considering punishment. The concerns of Miller were honored in [B.R.’s]
sexual[-]assault case when he received a juvenile adjudication and
probation rather than a criminal conviction and prison sentence. In
contrast, the sex[-]offender registration scheme of Chapter 62 is civil and
remedial, not criminal or punitive.
In addition, we note that B.R. does not make any argument showing how Miller
helped him meet his burden of proof; instead, he implies that his status as a
juvenile—and the inherent mental and emotional deficiencies that lie therein—should
exempt him from sex-offender registration. This conclusion belies the language of
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Article 62.352 and would make such statute a nullity. B.R., however, raises no
arguments attacking the statute.
B.R. raises two additional arguments in his reply brief. B.R. states that his
delinquent conduct could only have been based on his having had consensual sex with
a female who, like him, was also younger than fourteen years of age. B.R. attempts to
couch the underlying sexual offenses as “the scenario where two children engaged in
consensual sexual conduct.” A child under fourteen, however, may not consent to
sex. See May v. State, 919 S.W.2d 422, 424 (Tex. Crim. App. 1996) (stating that a child
under fourteen cannot legally consent to sex and that alleged consent of a victim who
is under fourteen is therefore not an available defense); see also State v. R.R.S., 597
S.W.3d 835, 842–43 (Tex. 2020) (explaining that juvenile’s legal inability to consent to
sex does not render him illegally incapable of committing the offense of aggravated
sexual assault). Moreover, B.R. may not collaterally attack the underlying probation
order here; the only order on appeal is the sex-offender registration order.
Finally, in his reply brief, B.R. responds to the argument in the State’s brief that
this court should assign no weight to his testimony (regarding the reoffense of public
lewdness in the public park with an adult girlfriend who initiated the sex act) because
B.R. provided the sole testimony regarding the details of the act and because the
juvenile court found that his testimony lacked credibility. The State’s argument was
limited to a portion of B.R.’s testimony—regarding the new sex offense that led to his
unsuccessful discharge from treatment—that the juvenile court found lacked
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credibility. B.R. urges this court to “construe any possible credibility determination as
relating only to [his] testimony ‘minimizing his culpability’ for acts prior to his
discharge from treatment and should not apply any such determination to [his]
testimony more broadly than that narrow subset of subject matter.” He contends that
his testimony that he and his family would be harmed by an order requiring him to
register as a sex offender should still be afforded weight by this court. Even affording
weight to B.R.’s testimony about harm, such testimony, as discussed above, did not
overcome his burden to show by a preponderance of the evidence that any potential
increase in protection of the public is clearly outweighed by the anticipated substantial
harm to him and his family that would result from registration.
In light of the evidence and the juvenile court’s 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 M.C.H., 2016 WL 4131642, at *4; Z.P.H., 2014 WL 670203, at *4.
Accordingly, we overrule B.R.’s second issue.
V. Conclusion
Having overruled B.R.’s two issues, we affirm the juvenile court’s order
requiring B.R. to register as a sex offender.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: June 1, 2023
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