## I n the Court of App eals Secon d Appell ate 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 

### I N THE 

### M ATTER OF 

### R.S.2 DISS E N TING MEMORANDUM OPINION
I write to res pectfully d issent because I b elieve the evidenc e 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 fi nding th at com munity resources c ould not meet R.S. ’s
behavioral

- health or other special needs without sufficient evidence to support that finding. See Te x. 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. o p.). The majority also explains that a trial court does not abuse its discretion if at least some probative and subst antive evidence exists to support its decision or if the decision is based on conflicting e vidence. See D.T. , 2021 WL 5028769 at *1 . I believe tha t enough such evidence existed here to support the trial court’s finding.
It is undisputed that R.S. had performed well i n detention . It is also undisputed that his psychiatrist , and ev en the State , recommen d ed that R.S. be sent to a sec ure facility , in lieu of TJJ D , where R. S. could take advan tage of certain educational and therapeutic services. However, the trial court was also p resented with the following
evi dence:

• R.S.’s inta ke o f ficer testified that R.S. had not been successfully rehabilitated after his p robation for unlawful ly carrying a firearm.

• After he completed his probation, R.S. committed another, more violent offense in which he held a fam ily at gunpoint in a p r emedi t ated robbery scheme.3 • On another occas ion, also after he had co mpleted probation, R.S. took the same gun

— which he claimed to have purchased from a homeles s man

— to school and ended up getting shot in the fing er. He denied under o a th 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 histo ry and his limited ability to cope with stress. Further, it was “possible” that R. S

. — with time, support, and p roper motivation

— “may positively respond” to stric tly supervised, long

- term, and therapeutic treatment in a residential facility.
I w ould hold that this evidence was sufficient for the tri al court to have

reas on a bly found that R.S.’s needs

— namely his behavioral needs related to his risk for
violen ce

— coul d not have b een met in either of the proposed community facilities.
Probation did not reform R.S. , and placin g R.S. into one of the community facilities
would hav e meant

— albeit under mo r e restrictive terms

— placing R .S. back on probation. Not only was R.S . not reforme d by probation, his criminal and violent
behavior had actually escalated to the point that he had hel d children at gunpoint in a premeditated robbery scheme and had his o w n finger shot after he took a gun to school. The dubious testimony offe red by R. S. to explain how he obtained the gun , and who loaded the gun before he was shot , could have been viewe d by the trial court as attempts to deceive and lessen his culpability r ather than to take responsib ility for
his actions. And , R.S.’s psychiat rist had con cluded that it would take considerable time, effort, and motivation for R.S. to have had a chance at reha bilitation even within
the secure communit y facility.4 The trial c o urt could have reasonably co ncluded from this evidence that R.S.
was so p redisposed to violent behavior and had so strikingly failed to be rehabilitated by his first probation, that the pro posed community resources could not have me t his
behavioral need s. For these reasons, I respec tfully dissent and would affirm the trial

cou rt’s order

. /s/ Brian Walker
Brian Walker Justice
Delivered: December 8, 2022