### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00023- CV

In the Matte r of S. A. M.

F ROM CO UNTY COURT AT LAW NO . 1 O F CALDWELL CO UNTY NO. 232 1-1 2CC, H ONO RAB LE EDWARD L. J ARRETT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The S tate filed a petiti on alleg ing that appellant S.A.M., who was fiftee n y ear s old
at t he ti me of the offense, h ad co m m i t t ed the offense of ag g rava ted s exual assault of a child. See
Tex. Penal Code § 22.021 (ag g rava ted sexual assault); Tex. Fam. Cod e § 5 3.012 (prose cuting attorney shall revie w alleg ations of delinquent conduct and may file petition reque sting adjudication of child). About eig ht months later, the trial court signe d an order finding that S.A.M. had eng ag ed
in the alleg ed delinquent conduct. See Tex. Fam. Code § 54.04 (disposition hear ing and order ). The
court deter

mined that S.A.M. was in need of place ment outside of his home, place d him on probation until he turned eig hteen, and defe rre d a decision reg arding whether he should be exempt from sexoffe nder reg istration requirem ents until afte r he had completed trea tment. See Tex. Code Crim.
Proc. ar t. 62.351 (deter

mining whe ther juvenile is exempt from sex-offende r re g istration). About five months later, the State filed a motion to modify , alleg ing that S.A.M. had violated the terms of his probation by being discharg ed unsucce ssfully from his residential trea tment
cente r due to “tre atment failure , cre ating an unsafe environment, and dishonesty in thera py in the SexOffe nder Trea tment Prog ram,” and delivering a dang erous drug to another resident of the trea tment
cente r. The State also filed a motion to require S.A.M. to reg ister as a sex offe nder. The trial court

m o d ified S.A.M.’s dispositi on, committing him to the Texas J uvenile J ustice Depa rtment for an indeterminate amount of t ime, and orde red S.A.M. to re g ister as a sex offender

. See generally id.
arts. 62.001-.408 (g overning sex-offende r reg istration). On appea l, S.A.M. arg ues that the trial court

err ed in admitting two of the State’s exhibi ts beca use they contained inadmissible hear say and there

was a lack of trustworthiness in the method or circ umstances of their prepa ration. W e af

fi rm the trial court’ s judgme nt.

During the hea

ring on the State’s motion to modify S.A.M.’s dispositi on, the S tate offe red a repor

t by Kim Fr

ueh, a thera

pist at the residential trea tment cente r (Exhibi t 1), and a packe t of twenty -eig ht incident re p orts (Exhibi t 7) prepa red by various staff members of the cente r. Ex hibit 1 was offe red during testimony by Mart y L i t chfield, another thera pist at the cente r, and
S.A.M. objected that the exhibi t contained hear say and was not prepa red by L itchfield. S.A.M. also objected to the repor

t being offe red as a business rec ord, asser ting that they had not been prese nted

on file, see Tex. R. Evid. 902(10) (business rec ords are admissible if kept in regu lar course of business, acc ompanied by aff idavit, and “filed with the cler k of the court fo r i n clusion with the
paper s in the cause
. . . at least fourtee n day s prior to the day upon whi ch t ri al o f said cause

commence s”), they lacke d a proper foundation, and L itchfield was not the trea tment cente r’s keepe r of business rec ords. Ex hibit 7 was offe red during testimony by J oe Ramirez, S.A.M.’s case manag er
at t he center, and S.A.M. objected on the basis o f h ea rsay and because Ramirez had not filled out the repor ts and was not the cente r’s keepe r of business rec ords. Both times, the trial court overr uled S.A.M.’s objections and admitted the e x hibits.

2We wi l l as s u m e without deciding that the repor ts wer e admitted in err or beca use, based on this rec ord, we have a fair assura nce that S.A.M. was not harme d by their admission. The

err oneous admission of evide n ce is non-constitutional err or subject to harm analy sis under rule 44.2(b) of the rules of appellate proce dure. Taylor v

. State , 268 S.W .3d 571, 592 (Tex. Crim. App. 2008); Campos v. State , 317 S.W .3d 768, 779 (Tex. App.—Houston [1st Dist.] 2010, pet ref ’d) (citing Johnson v. State , 967 S.W .2d 410, 417 (Tex. Crim. App. 1998)); see Tex. R. App. P. 44.2(b) (er ror that does not aff

ect “substantial rig hts” shall be disreg arde d). We will aff irm the conviction if, in light of the entire rec ord, we have “fa ir assura nce” that the err or did not influence the trial court or had a t most a slight eff ect. Taylor , 268 S.W .3d at 592.
Ex hibit 1 is a one-pa g e document entitled, “T ej as 3 0 Da y Prog ress Report.” I n it,
S.A.M. rate d his g roup participa tion, overa ll prog ress, level of deviant sexual t h oug hts, thinking

err ors, are as needing i m p ro v em en t , an d the like. He also stated he had six day s off the “Positive
Peer L ist” beca

use of fig hting. Fr

ueh added her o wn assessment, ag ree ing with S.A.M.’s fairly positive assessments of his prog ress and participa tion but stating that he had a “g uarde d” prog nosis due to his ong oing impulsi ve behavior , lack of acc ountability , secr et keeping , deviant fanta sy , and

use of intimi dation or threa ts. She stated that althoug h S.A.M. said he was rea dy to take a poly g raph,

s h e w a s “ c o n c e r

n e d a b o u t w h e th e r h e ’ ll p a s s
. ” E xh ib it 7 is a p a c k e t o f 2 8 I n c id e n t Re p o r

ts c o mp le te d by the ce nter’s staf

f member s. 1

The repor ted incidents included: whistling and talking during “noise out” and disreg arding 1 staff instructions to stop; ref using to follow staff direc tions; being passive ag g ressive in response to sta f f in s tr u c ti ons; improperly g iving another resident his shoe lace s; needing his asthma inhaler when he had an ache in his chest; throwing a football at a peer ; twice get t i n g i n fi g hts with peer s; possessing fairly inconseque ntial items of contra band; not being allowed to take a phone call from 3I n addition to the two disputed ex hibits, t he State also introduce d:

• A n o th e r prog ress repor t by L itchfield and another thera pist, prepa

red one month af

te r F r u e h ’ s repor t (and about three wee ks befor e S.A.M.’s discharg e from the cente r). This repor t was signific antly more neg ative and noted that S.A.M. eng ag ed in “blamin g and minimi zing,” g ave a n “inconc lusive” poly g raph, a nd was unpre pare d and uncoope rative in ther apy
.

• A discharg e summary prepa red by L itchfield that states that S.A.M. had been advised by his at t o rn ey not to discuss or make admissions about the offe nse, which made prog ress in thera py “ver y dif fi cult,” and that even after he pled true to the allega tions, he denied them and had an inconclusive poly g raph test. L itchfield also stated that S.A.M. o ft en came to thera py unprepa

red, ref used to acc ept responsibility for the offe nse, and “demonstra t ed a number of problems that have been documented in over 60 I ncident R ep o rts,” including ref using to complete thera py assig nments, fig hting, providing medication to a peer , p o s s e s s in g c o n tr a

b a n d , d a ma g in g p r o p e r

ty , a n d a s s a u lt in g h is p e e r s
. L it c h f

ie ld r e c o mm e n d e d that S.A.M. (1) be discharg ed to continue trea tment in a “more restric tive setting that can better handle his ag g ression and assaultive behavior s” and (2) be require d to reg ister as a sex offe nder due to his ref

usal to take responsibility for the offe nse and his continuing ag g ression toward othe rs.

• Ramirez’s discharg e summa r y s ta ti n g th a t S. A.M. was discharg ed beca use of an inconclusive poly g raph, over 60 incident repor ts, and g iving medication to a peer
. Ramirez conclude d that S.A.M. had cre ated an unsafe environment for himself, his peer s, and staff an d was unwilling to be hone st with staff member s. L itchfield testified that S.A.M. did not make prog ress in t re at m en t , came to g roup thera py unprepa

red, and was involved in numerous incidents. He said that even in the cente r’s very controlled environment, S.A.M. wa s ab le to endang er his peer s, and he believed S.A.M. posed a dang er to the public and should be require d to reg ister as a sex offe nder. Ramirez testified about the

his mother due to cente r rules g overning when a resident may rec eive a phone call; telling his mother that a staff member had restra ined him by choking him, putting his kn ee o n S .A.M.’s throat, and twisting S.A.M.’s arm (that sta ff m em b er was fired for violating cente r proce dures and not using “prude nt judgme nt” in restra ining S.A.M.); repor ting that he felt dizz y and “we ird” and being g iven water by the responding staff member; passi n g a s i l l y note to a peer ; repe atedly neg lecting his thera py and disreg arding instructions t o work during thera py time; and g iving his psy chotropic medication to a pe er. 4incident repor ts and said that althoug h he was never persona lly involved in one of the rule-br eaking incidents, he would interac t with S.A.M. within a few day s afte r ea ch i n ci d en t. He said S.A.M.

never showed signific ant remorse for any of the incidents and usually said he would try to do better. Ramirez said S.A.M.’s “beha vior was up and down.

. . . [H] e k i n d o f had a cy cle of he would
maintain for a while then he would mess up ag ain.” Ramirez also said that neg lect of thera py raised

a r e d f la g f o r th e tr e a tm e n t c e n te r a

n d it s s ta f f

. F in a ll y , K e it

h B r a d b u r y , a d mi n is tr a to r o f th e tr e a

tm e n t
cente r, testified that S.A.M. was discharg ed from the prog ram beca use h e gave psy chotropic medication to another

resident a

nd was not truthful in his therapy

. S.A.M. testified and admitted that he g ave one of his medications to a fellow resident,
say ing he did not know he was g iving the othe r child a da ng erous dr

ug and that he thought he was
g iving the resident “something that he already had before.” He de nied the validit y of t he incident
repor ts, say ing that the staff was sneaky and disrespec tful, the repor ts wer e unjustified, and, “I would bare ly do any thing ove r there to ge t in trouble and I ’d still wind up getting in trouble.” Almost all of the information cont ai n ed i n the repor ts, cer tainly about the most serious and damag ing alleg ations, was provided throug h testimony (L itchfield, Ramirez, Br adbury , and S.A.M. himself) and the State’s other exhibi ts. S.A.M. arg ues that harm is indicated by the trial
court’s ref

err ing to the incident repor ts as evidenc e that S.A.M. was not w illing to f ollow the rules of the trea tment cente r, b u t i n light of all of the court’s rema rks and the overa ll weig ht of the evidenc e, we conclude that the disputed exhibi ts had littl e, if any , eff ect on the trial court’s decision
to modify S. A. M

. ’s dispositi on and order him to reg ister as a sex offe nder. See id. We overr ule S.A.M.’s issues and af

firm the trial c ourt’s judg ment.

5__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and F ield
Affir med Filed: September

11, 2014

6