in the Matter of J.D.H.M.

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00235-CV
In the MATTER OF J.D.H.M.
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 2011JUV00227
The Honorable Carmen Kelsey, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: March 19, 2014
AFFIRMED
Appellant J.D.H.M. appeals an order of transfer, transferring him from the Texas Juvenile
Justice Department (TJJD) to the Texas Department of Criminal Justice–Institutional Division
(TDCJ). On appeal, J.D.H.M. raises a single point of error, contending the juvenile court erred
when it transferred him to TDCJ because the record establishes he should have been placed on
parole with conditions. We affirm the trial court’s judgment.
BACKGROUND
According to documents in the record, J.D.H.M. received a call from a female individual
asking him if he wanted some marijuana. The female claimed she knew a drug dealer they could
rob. The female individual and a male individual picked up J.D.H.M., who claimed to be using
Xanax and marijuana that day. The male individual had a gun. When the three arrived at the drug
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dealer’s house, only J.D.H.M. went inside — he took the gun with him. Once inside, J.D.H.M.
pointed the gun at the individuals in the house and demanded marijuana, a scale, and the
television. 1 One of the individuals in the home carried the television outside and loaded it into the
waiting car. J.D.H.M. and the others left.
Ultimately, J.D.H.M. was arrested. The State filed a petition alleging J.D.H.M. engaged
in delinquent conduct in that he committed an aggravated robbery. J.D.H.M. stipulated to the
charge and pursuant to a plea bargain agreement with the State, the juvenile court committed
J.D.H.M. to TJJD for a fifteen-year determinate sentence, with the possibility of transfer to TDCJ.
After J.D.H.M. spent approximately two years in the TJJD, the Executive Director of the
TJJD advised the juvenile court that the agency was requesting J.D.H.M. be transferred to TDCJ
because he would not have completed his minimum required stay at TJJD before his nineteenth
birthday. After a hearing, the juvenile court ordered J.D.H.M. transferred to TDCJ to complete
his sentence. 2 J.D.H.M. perfected this appeal.
ANALYSIS
As noted above, J.D.H.M. contends that the trial court abused its discretion in transferring
him to TDCJ rather than placing him on parole. We disagree.
Standard of Review
We review a juvenile court’s decision to transfer a juvenile from TJJD to TDCJ under an
abuse of discretion standard. In re L.G.G., 398 S.W.3d 852, 855 (Tex. App.—Corpus Christi 2012,
no pet.); In re J.J., 276 S.W.3d 171, 178 (Tex. App.—Austin 2008, pet. denied). A trial court
abuses its discretion if it acts without reference to guiding rules or principles of law. See id.
1
In another portion of the record, it states J.D.H.M. demanded only the television.
2
Once the Executive Director of the TJJD refers a juvenile for transfer, the juvenile court must hold a hearing to
determine whether transfer for completion of a determinate sentence is appropriate. TEX. FAM. CODE ANN. § 54.11(a),
(i) (West Supp. 2013).
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In determining whether there was an abuse of discretion, we review the entire record. Id. “If some
evidence exists to support the juvenile court’s decision, there is no abuse of discretion.” L.G.G.,
398 S.W.3d at 855 (emphasis added); see In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San
Antonio 2006, pet. denied). We will not substitute our judgment for that of the juvenile court, and
we will not reverse a decision by the juvenile court simply because we would have decided the
matter differently. L.G.G., 398 S.W.3d at 855.
The Evidence
At the transfer hearing, the State called Leonard Cucolo, the TJJD court liaison. Mr.
Cucolo had prepared a summary report that was submitted to the juvenile court prior to the hearing.
Mr. Cucolo began by noting that in 2010, prior to J.D.H.M.’s adjudication for the aggravated
robbery, J.D.H.M. had prior adjudications for possession of marijuana and evading arrest.
Although J.D.H.M. did well academically while in TJJD — obtaining a GED, vocational
certificates, and attending some college courses — his behavior had been a concern, causing Mr.
Cucolo to recommend a transfer to TDCJ.
According to Mr. Cucolo, while in custody, J.D.H.M. “engaged in nine major rule
violations.” Mr. Cucolo stated major rule violations are new offenses committed by a juvenile
while confined in a TJJD facility that usually involve “some type of aggressive conduct.” In
J.D.H.M.’s case, the rule violations included assaults and possession of marijuana and other
contraband. Mr. Cucolo stated this behavior by J.D.H.M. was “pretty consistent and severe
throughout his stay.” However, Mr. Cucolo admitted that during the last six months, there was a
reduction in J.D.H.M.’s severe behavior. Nevertheless, he had engaged “in some pretty serious
behavior while he’s been confined . . . .” Mr. Cucolo described it as a pattern of behavior.
Mr. Cucolo testified J.D.H.M. had seventy-six documented incidents of misbehavior, and
sixty-two of those resulted in referrals to security. In addition, there were forty incidents of
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program disruption. There were five assaults and three incidents of fighting. With regard to the
assaults, there were times when J.D.H.M. was the aggressor, assaulting other juveniles within the
facility. J.D.H.M. was also aggressive with TJJD staff, and in one incident, took documents
belonging to the facility and destroyed them.
Mr. Cucolo testified J.D.H.M. had yet to advance to the Youth Empowerment Stage of the
program, which is the parole readiness stage. Once in this stage, the juvenile is considered ready
for parole because he has been actively participating in daily groups, continues to work and
complete academic objectives, and his behavior remains stable. J.D.H.M. was able to complete
the alcohol and drug program on his second attempt. He was removed from the program the first
time because of his behavior. J.D.H.M. also completed the “aggression replacement training
program,” basically an anger management program. Despite the completion of this program, his
aggressive conduct continued, though admittedly J.DH.M.’s last behavioral incident was several
months before the transfer hearing.
When asked about family support if J.D.H.M. was released on parole, Mr. Cucolo testified
he was only aware of a grandmother — J.D.H.M.’s mother passed away a few months before the
hearing. Thus, J.D.H.M. would be sent to a halfway house with little or no family support, still
having issues with aggression and substance abuse, making him a danger to the community and
himself.
Although the facility, the Giddings State School, recommended parole for J.D.H.M., Mr.
Cucolo recommended transfer to TDCJ. Mr. Cucolo said his decision was not easy for him, but
considering J.D.H.M.’s behavior during confinement, his previous history, and the lack of family
support, he had no choice because J.D.H.M. is “too much of a risk right now and not ready for
release.” The Executive Director of the TJJD, on behalf of the agency, joined Mr. Cucolo’s
recommendation.
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In support of parole, J.D.H.M. called Dr. Enrique Covarrubias as a witness. Dr.
Covarrubias, a psychologist with the Giddings State School, performed a psychological evaluation
of J.D.H.M. and prepared a report, which was considered by the juvenile court. Dr. Covarrubias
testified he spent two days evaluating J.D.H.M. He also consulted with facility staff. Both the
doctor and the facility recommended parole.
Dr. Covarrubias testified that at the time of the evaluation, J.D.H.M. was working in the
cafeteria. He had received a certification in “automotive service excellence” and was taking
vocational classes. The doctor documented only fifty-six incidents of misbehavior, explaining that
he did not consider self-referrals, any incident overturned on appeal, or security extensions —
extensions of stays in security when the juvenile was already in security for some other reason.
Dr. Covarrubias stated he does not include such incidents because they are not “necessarily
misbehavior.”
The doctor stated he has seen “quite a bit of improvement” in J.D.H.M.’s behavior over
time, noting J.D.H.M. entered the facility with a ninth grade education, but obtained his GED and
completed several facility programs. He was also taking “some college exam, entrance exam.”
J.D.H.M. told the doctor he wanted to take college courses, knew there were “loan programs” that
might allow him to do so, and would be willing to work any job to pay for it. The doctors said the
discussion about financial planning was something he does not typically “hear from other kids.”
J.D.H.M. received a vocational certification and was a peer mediator. Dr. Covarrubias said he saw
J.D.H.M. as “a youth with a lot of resilient factors considering his history.” The doctor then
provided details about J.D.H.M.’s childhood.
When J.D.H.M. was a young boy, he was abused and neglected; his family had an extensive
history with Child Protective Services. J.D.H.M.’s parents had substance abuse problems that led
to legal issues. His father died at age thirty-five, and his mother and best friend passed away in
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the months before the transfer hearing. All of these losses caused J.D.H.M. “grief related issues.”
According to Dr. Covarrubias, J.D.H.M. has family support from his grandmother, and he also
“talks quite a bit to his brother.” The doctor said he mentioned other family members, but they
did not really focus on them.
With regard to J.D.M.H.’s “Individualized Case Plan,” which the doctor described as a
report card for the juveniles, he was originally identified as high risk, but he made improvement.
Although J.D.M.H. has behavior problems, he felt remorse, and the doctor felt he was functioning
at a high level. The doctor testified he believed J.D.H.M. would be more successful in a halfway
house than in prison. Dr. Covarrubias felt J.D.H.M. needed the structure a halfway house would
provide: curfew, drug testing, and demands to work. If J.D.H.M. went to prison, the doctor feared
he would lose the ground he had gained in the TJJD facility.
J.D.H.M.’s maternal grandmother testified on his behalf. She provided information on his
difficult childhood and his mother’s instability. According to the grandmother, J.D.H.M.’s father
was emotionally abusive to J.D.H.M. and his mother. She described the father as “a bit of a control
freak person.” He isolated J.D.H.M. and his mother from the mother’s family. After J.D.H.M.’s
father died, his mother had trouble — “single parenting . . . was more than she could handle.”
J.D.H.M.’s mother was unable to maintain a job.
Both his grandmother and two of his maternal aunts testified they have seen improvement
in J.D.H.M. since his placement in TJJD. The grandmother stated that when J.D.H.M.’s mother
was hospitalized before her death, J.D.H.M. came to the hospital and the grandmother “saw a
different human being.” J.D.H.M. was calmer, his eyes were softer, and he embraced the family,
seeming to trust them. His grandmother testified that if he were paroled, she and her four sisters
would be supportive, but she believed a controlled environment, such as a halfway house, would
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be appropriate. She described J.D.H.M. as capable and bright, a leader who simply made “some
horrible choices.”
Application
In determining whether a juvenile should be transferred, the juvenile court may consider
several factors, including:
• the experiences and character of the juvenile before and after commitment to
TJJD;
• the nature of the offense the juvenile committed and the manner in which it was
committed;
• the abilities of the juvenile to contribute to society;
• the protection of the victim of the offense or any member of the victim’s family;
• the recommendations of the TJJD and the prosecutor;
• the best interests of the juvenile; and
• any other factor relevant to the issue to be decided.
TEX. FAM. CODE ANN. § 54.11(k). Although the court may consider these factors, it is not required
to consider each one, and is expressly permitted to consider relevant factors not set forth in section
54.11(k). J.J., 276 S.W.3d at 178; see TEX. FAM. CODE ANN. § 54.11(k).
The record establishes the juvenile court looked at the evidence in light of the relevant
section 54.11(k) factors. The court noted “the good things” J.D.H.M. accomplished, but recalled
that at the time of sentencing, she warns those like J.D.H.M. with determinate sentences about
their behavior and its possible ramifications with regard to subsequent transfers to TDCJ. The
juvenile court stated it was possible J.D.H.M.’s behavior had changed simply because he realized
he was turning nineteen and he would have to come back to court with regard to a transfer to TDCJ.
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Considering J.D.H.M.’s offense — aggravated robbery — and his extensive behavioral
issues during his time in TJJD, coupled with the recommendations from Mr. Cucolo and TJJD, we
cannot say the juvenile court abused its discretion in ordering J.D.H.M. transferred to TDCJ. Mr.
Cucolo presented evidence that J.D.H.M. was not a good candidate for even structured parole
based on his behavioral problems while at TJJD, his drug and alcohol issues, and the fact that he
had not yet fulfilled the minimum three years of his sentence. Although Dr. Covarrubias thought
that it was in J.D.H.M.’s best interest to be released into a structured parole environment based on
his recent behavioral improvements, mental stability, and academic success, the court did not find
his opinion compelling, perhaps because J.D.H.M’s recent improvement was at a time when he
knew transfer was possible.
Clearly, there was some evidence to support the juvenile court’s decision to transfer
J.D.H.M. to TDCJ as opposed to releasing him on parole. Because there was some evidence to
support the court’s decision, we hold there was no abuse of discretion. See L.G.G., 398 S.W.3d at
855; D.L., 198 S.W.3d at 229.
CONCLUSION
Based on the foregoing, we overrule J.D.H.M.’s point of error and affirm the trial court’s
judgment.
Marialyn Barnard, Justice
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