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 upheld based on
juvenile’s misconduct and unwillingness to assume responsibility while at TYC
[In re B.J.M.] (00-4-23).
On November 6, 2000, the Dallas Court of Appeals upheld a transfer from TYC
to TDCJ under the determinate sentence act based on the juvenile’s misconduct
while at TYC and his unwillingness to assume responsibility for the sexual
assault for which he was committed or any of the instances of misconduct.
¶ 00-4-23. In the Matter of B.J.M., UNPUBLISHED, No. 05-00-00179-CV, 2000 WL
1659539, 2000 Tex.App.Lexis ___ (Tex.App.—Dallas 11/6/00)[Texas Juvenile Law
(5th Edition 2000)].
Facts: B.J.M., a juvenile, appeals the order transferring him from the Texas
Youth Commission (TYC) to the Texas Department of Criminal Justice Institutional
Division (TDCJ) for the completion of a ten-year determinate sentence. B.J.M.
brings one point of error, arguing the trial court abused his discretion by
ordering B.J.M. transferred to TDCJ. For the reasons set forth below, we affirm
the trial court's judgment.
On April 2, 1998, B.J.M. was declared a child engaged in delinquent conduct for
committing sexual assault on a thirteen-year-old mentally-disabled girl. See
Tex.Pen.Code Ann. § 22.011 (Vernon Supp.2000). Because B.J.M. had committed a
violent offense, the family code allowed the trial court to sentence B.J.M. to a
determinate sentence with possible transfer to TDCJ. See Tex.Fam.Code Ann. §
54.04(a), (d)(3) (Vernon Supp.2000). On March 27, 1998, after a disposition
hearing, the trial court signed an "Order of Adjudication and Judgment of
Disposition with T .Y.C. Commitment" in which B.J.M. received a ten-year
determinate sentence. B.J.M. appealed the trial court's order and this Court
affirmed the order. See In the Matter of B.J.M., No. 05-98-00841-CV (Tex.App.--Dallas
Oct. 5, 1999, no pet.) (not designated for publication)[Juvenile Law Newsletter
¶ 99-4-15].
Approximately nineteen months into B.J.M.'s sentence, TYC requested a hearing to
transfer him to the TDCJ. TYC contended B.J.M. was not progressing appropriately
at TYC, had committed assault on fourteen other students, threatened two staff
members, and was at risk to reoffend. On December 9, 1999, after a transfer
hearing, the trial court granted an order of transfer to TDCJ. See Tex.Fam.Code
Ann. § 54.11 (Vernon 1996).
Held: Affirmed.
Opinion Text: In his sole point of error, B.J.M. contends the trial court abused
its discretion by ordering B.J.M. transferred to TDCJ. B.J.M. argues that TYC
did very little to rehabilitate B.J.M. or give him a chance to succeed.
We review the trial court's decision to transfer a juvenile from TYC to TDCJ
under an abuse of discretion standard. See J.R.W. v. State, 879 S.W.2d 254, 257
(Tex.App.--Dallas 1994, no writ). 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 principles. Id. If some evidence
supports the trial court's decision, there is no abuse of discretion. Id. at
257-58. We do not substitute our opinion 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. Id. at 257. We may not reverse for an abuse of discretion as
long as the trial court's decision was within its discretionary authority. Id.
In making the transfer determination, the trial court may consider: the
experiences and character of the juvenile before and after commitment to TYC;
the nature of the offense the juvenile was found to have committed and the
manner in which the offense was committed; the ability 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 TYC and the prosecuting attorney;
the best interests of the juvenile; and any other factor relevant to the issue
to be decided. Tex.Fam.Code Ann. § 54.11(k) (Vernon 1996); In re R.G., 994
S.W.2d 309, 312 (Tex.App
.--Houston [1 Dist.] 1999, pet. denied).
The trial court is not required to consider all of the factors, and the court is
expressly allowed to consider unlisted but relevant factors. R.G., 994 S.W.2d at
312. Evidence of each factor is not required. Id. Similarly, the court may
assign different weights to the factors it considers. Id.
At the transfer hearing, the trial court heard the testimony of three witnesses:
the court liaison for TYC, Leonard Cucolo; B.J.M.; and B.J.M.'s mother, Teresa
Cross. The court liaison’s report, as well as B.J.M.'s juvenile and TYC
records, were submitted to the trial court for consideration.
B.J.M. argues on appeal that the trial court abused its discretion by
transferring him to TDCJ because TYC did very little to rehabilitate him or give
him a chance to succeed. However, B.J.M. was provided treatment and
resocialization where possible and appropriate. B.J.M. participated in a
chemical dependency program until the program was shut down due to a lack of
funding. Because of B.J.M.'s behavior problems, he was never admitted to another
chemical dependency program. He was also removed from the coping skills program
because he engaged in an assault during the time he was enrolled in the program.
B.J.M. was not admitted to the sex offenders' program because he denied
responsibility for the sexual assault on the thirteen-year-old girl. His
initially reported he "blacked out" and when he regained
consciousness, the girl was on top of him having sex. He later admitted to
having sex with the girl, but denied it was rape. B.J.M. testified he did not
see the sexual assault as "serious" and did not see himself as a
rapist. To attend the sex offenders' program the offender must admit
responsibility for his offense.
Furthermore, under section 54.11, the trial court has no duty to establish that
TYC adequately attempted to rehabilitate the juvenile before transferring the
juvenile to TDCJ. The trial court determines only whether to transfer the
appellant to TDCJ, release him under supervision, discharge him, or recommit him
to TYC. J.R .W., 879 S.W.2d at 258.
The court liaison, Cucolo, testified B.J.M. was not progressing in the
resocialization process at TYC and had assaulted approximately fourteen other
juveniles during the previous nineteen months. The court liaison’s report
shows B.J.M. had sixty-three referrals and thirty-four placements in the
security unit in the year and a half he had been in TYC. Cucolo testified that
the psychologist who examined B.J.M. believed there was a very high probability
that B.J.M. would reoffend. As a representative of TYC, Cucolo asked the court
to transfer B.J.M. to TDCJ. All nine members of the TYC special services
committee agreed B.J.M. should be transferred to TDCJ.
Although B.J.M. was involved in at least sixty-three incidents in the nineteen
months he was in TYC, he contends that he was actually the victim in many of the
incidents. Throughout most of B.J.M.'s testimony he attempted to explain how he
was not at fault in the assaults alleged by TYC. In those instances in which he
did not claim to be the victim, B.J.M. contended the assault was only horseplay,
or a misunderstanding. However, he admitted to the psychologist that he had been
inducted into the Hoover 107 Crips gang when he was sixteen, and he testified at
trial that many of the incidents which occurred at TYC were gang related. B.J.M
testified he was not actually part of a gang, he was just "hanging out with
them and stuff," and had only said he was a gang member to get a better
placement at TYC. At trial he repeatedly denied responsibility for his behavior.
In part because of the unwillingness of B.J.M. to take responsibility for his
actions, the psychologist stated in her evaluation that further treatment at TYC
would be ineffective. She reported that B.J.M. had made minimal progress and
needed greater structure than TYC could provide. B.J.M. had not demonstrated
responsiveness to treatment efforts and was unlikely to respond to further
efforts at rehabilitation at TYC. The psychologist felt B.J.M. needed a more
restrictive setting than was available at TYC and recommended he be transferred
to TDCJ.
The record shows B.J.M. was uncooperative with treatment attempts during his
stay at TYC, refused to take responsibility for his behavior, and was a threat
to the students and staff of TYC. It is clear there were ample grounds to
transfer B.J.M. to TDCJ and, therefore, the juvenile court did not abuse its
discretion by transferring him.
We affirm the judgment of the trial court.