By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Transfer to TDCJ under determinate sentence
act upheld based on juvenile’s misconduct and lack of rehabilitative progress
in TYC [In re D.W.H.] (00-4-22).
On November 2, 2000, the El Paso Court of Appeals held it did not have to
decide about the admissibility of psychological and psychiatric reports at the
TDCJ transfer hearing because the juvenile’s conduct while in TYC justified
the transfer.
¶ 00-4-22. In the Matter of D.W.H., UNPUBLISHED, No. 08-99-00187-CV, 2000 WL
1643511, 2000 Tex.App.Lexis ___ (Tex.App.—El Paso 11/2/00)[Texas Juvenile Law
(5th Edition 2000)].
Facts: This is an appeal from a juvenile court order transferring a juvenile,
D.W.H., to the custody of the Institutional Division of the Texas Department of
Criminal Justice (TDCJ). D.W.H. was previously adjudicated a delinquent in a
non-jury trial and assessed punishment under the determinate sentencing
provisions of the Texas Family Code.
On May 5, 1994, D.W.H., a twelve-year-old, was adjudicated in a non-jury
proceeding in a juvenile court of engaging in delinquent conduct, namely
aggravated sexual assault for penetrating with his finger the female organ of a
two-month-old girl he was babysitting. He was sentenced to commitment to the
Texas Youth Commission (TYC) for a period of ten years.
Five years later, on May 13, 1999, D.W.H. appeared at a transfer hearing
pursuant to Texas Family Code § 54.11 to determine whether he should be
released, returned to TYC to serve out his sentence until age twenty-one, or
sent to adult prison to serve the remainder of his sentence. At this hearing,
the State presented its Exhibits 1a and 1b, which was D.W.H.'s
"master" file. The master file contained records from TYC that
included reports from probation officers, professional court employees, or
consultants for TYC, as well as psychological and psychiatric evaluations of
D.W.H. Leonard Cucolo, a TYC Program Administrator and court liaison for TYC,
testified that he was the custodian of these records, that the exhibits were
business records kept in the regular course of business at TYC, and that the
entries were made by TYC employees or representatives who made those entries at
or near the time of the event. D.W.H. objected that, inter alia, the exhibits
did not meet the requirements of Daubert v. Merrell Dow Pharmaceuticals, 509
U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), because Cucolo was not a
psychologist or psychiatrist, and therefore, he could not be considered an
expert and could not make any recommendations based on those exhibits. The trial
court overruled D.W.H.'s objection as to the exhibits and as to Cucolo's
transfer recommendation on behalf of TYC based on those portions of the
exhibits. It is the resulting admission of these exhibits that forms the basis
of this appeal.
Held: Affirmed.
Opinion Text: In his sole issue on review, D.W.H. contends that at the transfer
hearing, the trial court erred in admitting into evidence State's Exhibits 1a
and 1b because Cucolo was not an expert under Texas Rule of Evidence 702, and
therefore, he could not prove that the psychological reports included in these
exhibits complied with Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).
We have not been presented with, nor can we find, any authority that provides
that in a juvenile case, Rule 702 applies in a release or transfer hearing for
purposes of Texas Family Code § 54.11. However, even if we were to address this
appeal on the merits of D.W.H.'s claim, we would still find that the trial court
did not abuse its discretion in its decision to transfer him to
TDCJ.
Section 54.11(d) governs the release or transfer hearing and states that "[a]t
a hearing under this section the court may consider written reports from
probation officers, professional court employees, or professional consultants,
in addition to the testimony of witnesses." Tex.Fam.Code Ann. § 54.11(d)
(Vernon 1996). Further, Section 54.11(k) provides:
In making a determination under this section, the court may consider the experiences and character of the person before and after commitment to the youth commission, the nature of the penal offense that the person was found to have committed and the manner in which the offense was committed, the abilities of the person to contribute to society, the protection of the victim of the offense or any member of the victim's family, the recommendations of the youth commission and prosecuting attorney, the best interests of the person, and any other factor relevant to the issue to be decided.
Tex.Fam.Code Ann. § 54.11(k) (Vernon 1996).
A. Standard of Review
As the Fifth District Court of Appeals so aptly stated,
We review the trial court's decision made pursuant to 54.11 under an abuse of discretion standard. In deciding whether the trial court abused its discretion, we review the entire record to determine if the trial court acted without reference to any guiding rules and principals. If some evidence supports the trial court's decision, there is no abuse of discretion. We do not substitute our decision for that of the trial court. We reverse the trial court's decision only if the trial court acted in an unreasonable or arbitrary manner. We may not reverse for an abuse of discretion as long as the trial court's decision was within its discretionary authority.
In re T.D.H., 971 S.W.2d 606, 610 (Tex.App.--Dallas
1998, no pet.) (citations omitted).
In the instant case, we find that the trial court did not abuse its discretion
in deciding to transfer D.W.H. to TDCJ because the record reflects some
evidence, notwithstanding the psychological or psychiatric reports evaluating
D.W.H., to support that decision. At the transfer hearing, Cucolo testified that
during D.W.H.'s four-year stay at TYC, he did not avail himself to the treatment
programs available to him. Instead, he engaged in disruptive, assaultive,
threatening behavior. Specifically, he was involved in approximately 155
incidents of misconduct that required him to be referred to the security unit.
Of those 155 incidents, he was placed in security 100 times, and 128 of those
incidents were considered as a "substantial disruption." He was also
involved in twelve incidents wherein he was a danger to others: two involved
destruction of property, another four involved assaulting students, and one
involved an escape risk. His last security referral and placement to security
occurred as recently as one month before the transfer hearing was conducted.
D.W.H. was committed to TYC for aggravated sexual assault, but his progress in
TYC's resocialization program for that type of offender was nonexistent, and his
effort in that program was minimal. Based partly on his behavior during his stay
at TYC, Cucolo testified that D.W.H. had a high risk of re-offending. His
behavior at TYC has also disrupted the treatment program for other juveniles at
TYC. Cucolo stated that TYC makes its recommendation based on factors other than
just the psychological evaluations, including the juvenile's overall performance
while at TYC.
At the conclusion of the transfer hearing, the trial judge stated that after
carefully considering (1) D.W.H.'s experiences and character before and after
his commitment to TYC, (2) the nature of the offense, (3) the manner in which
the offense was committed, and (4) D.W.H.'s ability to contribute to society, it
was in D.W.H.'s best interest to be transferred to TDCJ.
In light of the numerous other factors considered by the trial court that did
not involve the psychological or psychiatric reports included within Exhibits 1a
and 1b, we cannot say that the trial court abused its discretion in transferring
D.W.H. to TDCJ pursuant to Texas Family Code § 54.11. Accordingly, Appellant's
sole issue on review is overruled.
Having overruled Appellant's sole issue on review, we affirm the judgment of the
trial court.