In the Matter of B. K. A., Jr., a Minor v. the State of Texas ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00761-CV
In the Matter of B. K. A., Jr., a Minor
FROM THE 424TH DISTRICT COURT OF BURNET COUNTY
NO. 49633, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant B.K.A., Jr., a Minor (“Billy”), appeals from the trial court’s order
requiring him to register publicly as a sex offender. 1 In a single issue on appeal, Billy asserts
that the evidence is insufficient to support the trial court’s finding that he should register publicly
as a sex offender. We will affirm the trial court’s order.
BACKGROUND
Billy was born in 2004. In 2019, the trial court adjudicated him delinquent for
committing the offenses of aggravated sexual assault of a child and indecency with a child by
contact. The trial court placed Billy on probation for 24 months and deferred its decision on
whether Billy should be required to register as a sex offender “until [Billy] has completed a
sex-offender treatment program as a condition of probation.”
In 2021, the State filed a motion to modify Billy’s probation after being informed
by Billy’s treatment provider that Billy most likely would not have enough time to complete his
1
We refer to appellant using a pseudonym to protect his identity. See Tex. R. App. P.
9.8(c)(2).
treatment prior to the end of his probation term. The State asked that Billy’s probation be
extended to October 11, 2022, Billy’s 18th birthday, and the trial court granted the State’s
motion. In May 2022, the trial court again modified Billy’s probation, transferring him to a
different sex-offender treatment provider for the remainder of his probation.
Upon completion of Billy’s probation, the State filed a motion to determine sex
offender registration, asking that Billy be required to register non-publicly as a sex offender and
indicating that Billy did not oppose the request. Billy filed a response, stating that although he
had originally agreed to the State’s motion for non-public registration, he now sought exemption
from registration altogether because he had successfully completed sex-offender treatment.
Following a hearing at which several witnesses testified, the trial court ordered that Billy be
required to register publicly as a sex offender. This appeal followed.
GOVERNING LAW AND STANDARD OF REVIEW
When a juvenile is adjudicated delinquent for a sex offense, the Code of Criminal
Procedure authorizes trial courts to require the juvenile to register as a sex offender. See Tex.
Code Crim. Proc. art. 62.051(a) (generally requiring sex-offender registration of any “person
who has a reportable conviction or adjudication”); see also id. art. 62.001(5) (defining
“reportable conviction or adjudication” to include offenses of aggravated sexual assault and
indecency with child). Upon adjudication, the trial court may require registration, exempt the
juvenile from registration, or defer a decision as to whether registration is required. See id. art.
62.352(a), (b).
When a trial court defers its decision on whether to require registration as a sex
offender, as it did here, the trial court “retains discretion and jurisdiction to require, or exempt
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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.” Id. art. 62.352(c). “Following successful completion of
treatment, the [juvenile] is exempted from registration under this chapter unless a hearing under
this subchapter is held on motion of the prosecuting attorney . . . and the court determines the
interests of the public require registration.” Id. Registration may be either public or non-public.
See id. art. 62.352(b), (c). When registration is non-public, the registration information “may not
be posted on the Internet or released to the public,” id. art. 62.352(d), and “is restricted to use by
law enforcement and criminal justice agencies, the Council on Sex Offender Treatment, and
public or private institutions of higher education,” id. art. 62.352(b).
We review the trial court’s decision on registration for abuse of discretion. See id.
art. 62.357(b); In re R.A., 465 S.W.3d 728, 740 (Tex. App.—Houston [14th Dist.] 2015, pet.
denied). “Generally, the test for abuse of discretion is whether the trial court acted without
reference to any guiding rules and principles or whether the trial court acted arbitrarily or
unreasonably.” In re R.A., 465 S.W.3d at 742 (citing Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241–42 (Tex. 1985)). Under this standard, “legal and factual insufficiency are
not independent grounds of error, but rather are relevant factors in assessing whether the trial
court abused its discretion.” Id. (citing Baltzer v. Medina, 240 S.W.3d 469, 475 (Tex. App.—
Houston [14th Dist.] 2007, no pet.)). The trial court does not abuse its discretion “as long as
some evidence of a substantive and probative character exists to support the trial
court’s decision.” Id.3
DISCUSSION
In his sole issue on appeal, Billy asserts that the evidence is legally and factually
insufficient to support the trial court’s finding that he should be required to register publicly as a
sex offender. Although he does not dispute on appeal that he should be required to register, he
contends that his registration should be non-public.
Evidence presented
The evidence presented at the hearing to determine sex-offender registration
included the testimony of Dr. Shelley Graham, who performed a psychosexual evaluation on
Billy in April 2022; Melody LeVane, a therapist and treatment director at Brookhaven Youth
Ranch, the first facility where Billy received sex-offender treatment; Terri Werner, a therapist
and sex-offender treatment provider at Pegasus Schools, Inc., the second facility where Billy
received sex-offender treatment; Annette Robbins, the sex offender supervision officer for the
juvenile probation department in Burnet County, who supervised Billy’s probation; and Rafael
Tovar, a Child Protective Services caseworker who worked with Billy for several months toward
the end of his probation.
Documentary evidence admitted at the hearing included a copy of Dr. Graham’s
psychosexual evaluation report on Billy, which provided extensive information on Billy’s
history, including the following details regarding his delinquent conduct:
Per the Brookhaven Youth Ranch Treatment Review, [Billy’s] sister made an
outcry of sexual abuse, stating that [Billy], who was 14 at the time, had repeatedly
sexually assaulted her and other family members. The victim stated that the abuse
had started when she was 4 years old and [Billy] was 5. The records note that at
the time of his admittance into Brookhaven Youth Ranch, he had 4 felony charges
for Sexual Assault. [Billy] reported that he began engaging in sexual acts with his
sisters and cousins starting at age 5 or 6 years and ending at 14 years of age. He
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reported to the examiner that the assaults included sexual intercourse as well as
sexual touching. He identified the victims as his sisters and cousins, noting that
he primarily targeted female relatives but additionally engaged in sexual acts with
male cousins. . . . Billy reported that at this time, he is only facing two felony
charges as the other two were dropped.
The report went on to state that Billy admitted to engaging in various other bad behaviors during
his childhood, including fighting, trespassing, starting fires, sexual deviance, hurting animals,
and engaging in sexual acts with an animal. He had a history of neglect and “anger outbursts,”
had made “threats of self-harm” when he was younger, and had received diagnoses of
schizophrenia, psychotic disorder, and conduct disorder. Brookhaven treatment records “noted
instances of sexual advances or physical assaults towards peers, as well as theft,” “rule-violating
behavior,” and “property destruction.” Incident reports from Brookhaven also indicated that
“[Billy] would target students whom he perceived as weaker, when he first entered into the
program, coercing them into sexual favors for protection.”
Other comments in the report were favorable to Billy. He “was given the Hanson
Sex Attitudes Questionnaire to assess for possible cognitive distortions regarding sexual
behaviors. Within the assessment, [Billy] endorsed healthy attitudes about sex. Nothing of
concern was noted within his responses.” Billy also exhibited above-average intellectual
functioning and appeared “open to treatment modalities and endors[ed] the value of personal
change and personal responsibility.” Moreover, “[t]here were no significant concerns reported
with unusual thoughts, problems with empathy, undue suspiciousness, extreme moodiness,
unhappiness, elevated mood, anxiety, or physical health concerns.” Additionally, “there were no
reported concerns with alcohol or drug abuse.”
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However, the report further indicated that Billy was at high risk of re-offending.
The tool that Dr. Graham used for evaluating Billy’s risk of re-offending was the Juvenile Sex
Offender Assessment Protocol-II (J-SOAP-II). Based on the results of the J-SOAP-II, Billy
scored high on both the sex and violence scales, which meant that Billy “may well require more
intensive supervision in a highly structured environment” and “would benefit from sex-offense
specific treatment as well as delinquency-focused interventions.” Dr. Graham concluded in her
report that Billy’s J-SOAP-II “indicate[s] high risk for recidivism of sexual offending and
other behaviors.”
During her testimony, Dr Graham explained the results of her evaluation in more
detail. She testified that “if someone has thoughts or any sort of fantasy, visualization that
includes violence, that is seen to be a more significant finding because that can be more
dangerous to the community potentially.” Scoring high in both sex and violence, as Billy did,
indicated to Graham that “in some of his fantasies or thought processes,” “he did include
violence at times in part of his imaginings.” She added, “[W]hen you pair those two things
together, the sexual and the violence, that’s a potentially dangerous combination.”
When asked to provide a recommendation regarding registration in this case,
Dr. Graham testified that “public registration does not necessarily show to be effective in the
literature, but what it does is it provides a scenario where someone might be held accountable by
thinking that they know that there is going to be some oversight.” She explained that she has “a
long record . . . of not recommending that there be . . . a need to register for a juvenile,” but that
“in this instance I feel like [Billy] still needs more [treatment]. And so from that perspective and
being the age he is and what is left for him to do, it would seem that the registry would be
something that would allow some oversight in the community regarding what his behaviors
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might be.” She added that registration could be non-public but that “if [Billy] does not have any
other means to have more treatment to help him, then public registry might allow the public to be
more safe in some ways,” even though in her view, “the research does not bear out that
that’s accurate.”
Annette Robbins, the sex offender supervision officer for the juvenile probation
department in Burnet County, testified that she had been working with Billy since the case
began. Robbins explained that she communicated monthly with Billy over the phone and
maintained contact with his treatment providers, receiving monthly reports on Billy’s treatment.
Robbins testified that Billy had “minimal participation” in treatment at the beginning of the case
and was “not really participating in the treatment program like he should.” Robbins explained
that at the end of Billy’s time at Brookhaven, “he started picking up the pace a little bit” and
“was doing better at the end,” but in her opinion “he still . . . had a lot of work to do.” Robbins
drew a “distinction between completing the program, going through the process and checking the
boxes, and actually engaging and successfully learning and incorporating what’s taught.”
Robbins did not believe that Billy had successfully completed treatment at Brookhaven
“[b]ecause he continued to disclose deviant sexual fantasies of his victim repeatedly on
numerous occasions.” In her view, “when you continue to have those things, those thoughts, I
don’t think that you successfully complete[d].”
Robbins testified that Billy “did okay” at Pegasus, the second facility where he
received treatment. “[T]here [were] not really a whole lot of incident reports” at Pegasus,
although there were “some power struggles and some inappropriate conversation” between Billy
and staff members at the facility. Also, Billy made “significant disclosures” while at the facility
that concerned Robbins. These disclosures included “having deviant sexual fantasies of . . . one
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of his victims” and “having deviant sexual fantasies of raping one of the Pegasus staff members
while his peers at Pegasus were onlooking and cheering him on.” Based on these disclosures,
Robbins recommended that Billy register publicly. Robbins explained that recommending public
registration was not her standard practice and that she had recommended public registration less
than ten times in the over 100 cases she had supervised.
Melody LeVane, Billy’s therapist at Brookhaven, testified that when Billy was
first admitted to the facility, he made numerous admissions of deviant sexual behavior, including
that he had groomed three children for sexual activities, physically forced one child into sexual
activity, found child pornography, had sex with an animal, masturbated in public on numerous
occasions, had sexual contact with someone who was sleeping on two occasions, tortured
animals approximately 30 times by hitting them, sexually fondled a friend who fondled him in
return, and regularly fantasized and masturbated to thoughts of his victims.
LeVane testified that Billy’s issues were discussed during his therapy and that
Billy “completed the required assignments and he showed considerable improvement in all of the
domains that we’re looking for,” including “demonstrat[ing] a lot of understanding and
empathy” and “tremendous” social improvement and engagement. LeVane believed that by the
time Billy left Brookhaven, he had successfully completed their sex-offender program, although
she clarified that “[t]o successfully complete our program does not mean the same thing as to
successfully complete all of the requirements.” Rather, “he completed what [LeVane] believed
he could complete with us.” LeVane acknowledged that Billy had not been entirely successful at
Brookhaven. Specifically, Billy “was struggling with abiding by the rules of pornography,”
which he had “periodically accessed” while at the facility, including by persuading a staff
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member to give him her phone. LeVane testified that she was generally opposed to public
registration “for kids” and recommended that Billy not be required to register publicly.
Terri Werner, Billy’s therapist at Pegasus, testified that Billy “showed remorse”
for his past sexual behaviors and “talked about, you know, not wanting to do those things again.”
However, she added that Pegasus did not “really have any sort of evidence as to how he would
do unsupervised in the community because he hadn’t been” unsupervised before, so they “talked
a lot about that and, like, what would be some risk factors for [Billy],” and Werner “felt like he
was able to identify those.” Werner testified that concerns arose after Billy “disclosed some
sexual fantasies that involved raping a female staff member where peers were around to kind of
cheer him on” and “said that he fantasized about one of the victims, who, from what I
understand, was a cousin.” As a result of those disclosures, Werner recommended that Billy
register. She explained,
I feel like after three and a half years of treatment at Brookhaven and the four
months that he did treatment at Pegasus one of the main things we focus on is
changing deviant thoughts to something more positive and I didn’t see that that
had happened. I feel like there is—you know, there’s really not an opportunity
for me to see how he’s going to do in an unsupervised environment, so I feel like
there needs to be some form of monitoring.
When asked if she agreed or disagreed that registration was beneficial, Werner testified,
I really can’t say for sure if I agree or disagree. I’m sure that that’s accurate. I
agree that he should be registered. I don’t think it needs to be public. I think that
public registration probably does cause stress, but I also think that probation
causes stress. I mean, but there’s a reason for it and I think the main reason that I
recommend it is so that there will be someone to monitor him and hold him
accountable until he can show how he’s going to do in an unsupervised
environment.
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In her clinical discharge summary, a copy of which was admitted into evidence, Werner wrote
that Billy “showed that he could keep himself and others safe in a highly supervised
environment, but it is difficult to determine if he will do so when he transitions back into
the community.”
Rafael Tovar, Billy’s CPS caseworker, testified that “[s]ex offender registration
would essentially bar [Billy] from all supervised extended living programs or transitional living
programs,” regardless of whether registration was public or nonpublic. In Tovar’s opinion,
registration would be detrimental to Billy because it would adversely affect his access to
CPS resources.
Also admitted into evidence were emails from Billy’s treatment providers in
which they summarized Billy’s progress in treatment and copies of protective orders prohibiting
Billy from, among other things, having contact with or communicating with his victims until
2042. Billy’s attorney ad litem testified that Billy had agreed to the protective orders.
Analysis
In arguing that the evidence is insufficient to support the trial court’s decision to
have Billy register publicly as a sex offender, Billy emphasizes the testimony of LeVane, who
recommended that Billy not be required to register publicly; Werner, who testified that she did
not think Billy needed to be registered publicly; and Dr. Graham, who testified that “public
registration does not necessarily show to be effective in the literature” and indicated that
although she believed Billy should register, she believed it could be non-public. Billy also points
to evidence showing that public registration would be stressful to him and would limit his access
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to community resources. Finally, he claims that the protective orders would protect the victims
of his crimes without the need for public registration.
Although the above provides some evidence that is contrary to the trial court’s
finding that the interests of the public require that Billy register publicly, there is other evidence
in the record that supports the trial court’s finding. Robbins, Billy’s juvenile probation officer
who had known and worked with Billy since the case began, recommended public registration
because of Billy’s “significant disclosures” while at Pegasus of “having deviant sexual fantasies
of . . . one of his victims” and “having deviant sexual fantasies of raping one of the Pegasus staff
members while his peers at Pegasus were onlooking and cheering him on.” Robbins did not
believe that a person who continues to have sexually deviant thoughts has successfully
completed sex-offender treatment, even though Billy had completed the programs at both
Brookhaven and Pegasus. Robbins testified that she had recommended public registration fewer
than ten times in the more than 100 cases that she had supervised, and the trial court could have
reasonably inferred from this testimony that Robbins would not be recommending public
registration in this case unless she believed it was necessary.
Moreover, LeVane’s and Werner’s testimony that Billy had completed the
programs at their facilities came with caveats. LeVane acknowledged that Billy had not been
entirely successful at Brookhaven, that “[t]o successfully complete our program does not mean
the same thing as to successfully complete all of the requirements,” and that Billy “was
struggling with abiding by the rules of pornography” while at Brookhaven, including by using a
staff member’s phone to access pornography. Werner testified that Billy’s fantasies of raping his
cousin and a Pegasus staff member raised concerns about how Billy would do in an unsupervised
environment. In her clinical discharge summary, Werner wrote that Billy “showed that he could
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keep himself and others safe in a highly supervised environment, but it is difficult to determine if
he will do so when he transitions back into the community.” Although Werner testified that
“public registration probably does cause stress,” she acknowledged that “there’s a reason for it”
and that it would enable “someone to monitor him and hold him accountable until he can show
how he’s going to do in an unsupervised environment.”
Similarly, although Dr. Graham expressed skepticism regarding the effectiveness
of public registration, she also testified that “what it does is it provides a scenario where
someone might be held accountable by thinking that they know that there is going to be some
oversight.” She also testified that “if [Billy] does not have any other means to have more
treatment to help him, then public registry might allow the public to be more safe in some ways.”
Additionally, Dr. Graham concluded in her psychosexual evaluation report that
Billy was at a “high risk for recidivism of sexual offending and other behaviors.” On the
J-SOAP-II assessment tool that Graham used to evaluate Billy, he scored high on both the sex
and violence scales, which indicated to Graham that “in some of his fantasies or thought
processes,” Billy “did include violence at times in part of his imaginings.” Graham believed that
“when you pair those two things together, the sexual and the violence, that’s a potentially
dangerous combination” that can potentially “be more dangerous to the community.” The trial
court could have reasonably inferred that because Billy fantasized about sexual violence and was
at a high risk of re-offending, public registration was necessary to protect the community.
Additionally, the trial court could have reasonably inferred that although the protective orders
might provide some protection to Billy’s victims, they did not provide any protection to the
public at large and that to protect those who were unaware of Billy’s history and proclivities,
public registration was necessary.
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We conclude on this record that the evidence is legally and factually sufficient to
support the trial court’s finding that the interests of the public required public registration in this
case. Accordingly, we are unable to conclude that the trial court abused its discretion in
requiring Billy to register publicly as a sex offender. See In re D.K., 589 S.W.3d 861, 866-69
(Tex. App.—Fort Worth 2019, pet. denied); In re L.L., Jr., 408 S.W.3d 383, 386-88 (Tex.
App.—El Paso 2011, no pet.); see also In re J.J., No. 01-22-00500-CV, 2023 WL 4937052, at
*10-11 (Tex. App.—Houston [1st Dist.] Aug. 3, 2023, no pet. h.) (mem. op.) (concluding that
trial court did not abuse its discretion in ordering juvenile to publicly register as sex offender and
noting that “[h]ow to weigh” conflicting evidence “is a matter of the juvenile court’s
discretion”); In re A.C., No. 03-17-00652-CV, 2018 WL 3748680, at *3-5 (Tex. App.—Austin
Aug. 8, 2018, no pet.) (mem. op.) (concluding that trial court did not abuse its discretion in
ordering juvenile to publicly register as sex offender when, among other reasons, juvenile’s
probation officer testified that juvenile presented danger to community).
We overrule Billy’s sole issue.
CONCLUSION
We affirm the trial court’s order determining that Billy register publicly as a
sex offender.
__________________________________________
Gisela D. Triana, Justice
Before Justices Baker, Triana, and Smith
Affirmed
Filed: August 24, 2023
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