In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-22-00165-CV

___________________________

On Appeal from the 323rd District Court

Tarrant County, Texas

Trial Court No. 323-118013-22

Dissenting Memorandum Opinion by Justice Walker

IN THE MATTER OF R.S.
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DISSENTING MEMORANDUM OPINION

I write to respectfully dissent because I believe the evidence in this admittedly 

difficult case was sufficient to support the trial court’s order.

As the majority explains, we are tasked here with determining whether the trial 

court abused its discretion in finding that community resources could not meet R.S.’s 

behavioral-health or other special needs without sufficient evidence to support that 

finding. See Tex. Fam. Code Ann. § 54.04013; In re D.T., No. 02-20-00312-CV, 2021 

WL 5028769, at *1 (Tex. App.—Fort Worth Oct. 28, 2021, no pet.) (mem. op.). The 

majority also explains that a trial court does not abuse its discretion if at least some 

probative and substantive evidence exists to support its decision or if the decision is 

based on conflicting evidence. See D.T., 2021 WL 5028769 at *1. I believe that 

enough such evidence existed here to support the trial court’s finding.

It is undisputed that R.S. had performed well in detention. It is also undisputed 

that his psychiatrist, and even the State, recommended that R.S. be sent to a secure 

facility, in lieu of TJJD, where R.S. could take advantage of certain educational and 

therapeutic services. However, the trial court was also presented with the following 

evidence:

• R.S.’s intake officer testified that R.S. had not been successfully rehabilitated 

after his probation for unlawfully carrying a firearm.

• After he completed his probation, R.S. committed another, more violent 

offense in which he held a family at gunpoint in a premeditated robbery 

scheme.
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• On another occasion, also after he had completed probation, R.S. took the 

same gun—which he claimed to have purchased from a homeless man—to 

school and ended up getting shot in the finger. He denied under oath having 

loaded the gun.

• R.S.’s psychiatrist concluded that R.S. was in a “high-risk category for future 

violence” due to his aggressive and assaultive history and his limited ability to 

cope with stress. Further, it was “possible” that R.S.—with time, support, and 

proper motivation—“may positively respond” to strictly supervised, long-term, 

and therapeutic treatment in a residential facility.

I would hold that this evidence was sufficient for the trial court to have 

reasonably found that R.S.’s needs—namely his behavioral needs related to his risk for 

violence—could not have been met in either of the proposed community facilities. 

Probation did not reform R.S., and placing R.S. into one of the community facilities 

would have meant—albeit under more restrictive terms—placing R.S. back on 

probation. Not only was R.S. not reformed by probation, his criminal and violent 

behavior had actually escalated to the point that he had held children at gunpoint in a 

premeditated robbery scheme and had his own finger shot after he took a gun to 

school. The dubious testimony offered by R.S. to explain how he obtained the gun,

and who loaded the gun before he was shot, could have been viewed by the trial court 

as attempts to deceive and lessen his culpability rather than to take responsibility for 

his actions. And, R.S.’s psychiatrist had concluded that it would take considerable 

time, effort, and motivation for R.S. to have had a chance at rehabilitation even within 

the secure community facility.
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The trial court could have reasonably concluded from this evidence that R.S. 

was so predisposed to violent behavior and had so strikingly failed to be rehabilitated 

by his first probation, that the proposed community resources could not have met his 

behavioral needs. For these reasons, I respectfully dissent and would affirm the trial 

court’s order.

/s/ Brian Walker

Brian Walker

Justice

Delivered: December 8, 2022