### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 6 -00 355 -CV

In t he M at te r of R . C . , A ppe lla nt

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 98TH JUDICIAL DISTRICT NO. J-1 7,56 5 , HO NORAB LE W. JEANNE MEURER , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
I n Octob er 2000, a

ppellant was a djudicated de linquent based on the unde rly ing offe nse of attempted capital murde r. Appe llant was committed to the Texas Youth Commi ssi on (TYC) on a

twenty -y ear

deter minate sentenc e. In J anuar y 2006, the TYC re quested that R.C. be tr ansfer re d to the I ns tit

uti on a l D ivi sio n o f t

he Te xas D e pa

rtme nt o f C ri min a l Just ic e (T DC J) to complete his dete rminate sente nce. See Tex. Hum. Res. Code Ann. § 61.079(a) (West Supp. 2006). I n April 2006, afte r a he aring , the cour t ordere d appellant to be tr ansfe rre d to the TDCJ
. See Tex. Fam. Code Ann. § 54.11 ( West S upp. 2006). In one issue on appe al, appe llant contends that the trial cour

t abused its discretion in orde ring this transfer . We affir m the trial court’ s order
. Bac kgr ound At the transf

er he aring , numerou s witnesses testified. Most of the witnesse s were
e mpl oy e e s o f T YC wh o h a d de a lt wi th a pp e lla nt in va ri ou s c a pa c iti e s. Jac qu e lin e Da iss , a the ra pis t at the Gidding s State School, testified as the TYC psy cholog ical examiner. S h e describedAppellant was place d on phase level C-3 for five months in 2002. He wa s demoted to level C-2 1 beca use of be havior proble ms, ongoing proble ms in group the rapy , being manipulative and de c e pti ve , and inv olv e me nt in g ang -r e la te d a c tiv iti e s. He fa ile d to c omp le te nume ro us a ssi g nme nts under his individual case plan, in spite of beingwar ned that a de motion would occur. 2 appellant’ s rec ord with TYC. As of June 5, 2005, the date of the ex amination, appellant had acc rued 58 do c ume nte d in c ide nts in the “ Cor re c tio na l Care Sy ste m,” inc lud ingse ve n c a te g or y on e re fe rr a ls, the most ser ious c ateg ory . Among the problems documented wer e an “ag g ressive c o n fr o n t ati on” with another student in November of 2005 and invol vement in stealing letters and por nog raphy from a “sta ff de sk. ” Severa l incidents involved g angrelated ac tivity . Howeve r, Da is chara cter ized
a pp e lla nt’ s T YC re c or d a s r e ve a lin g ve ry fe w m a jor inc ide nts
. Samuel Adepipe, a

ppellant’s most rec ent ca seworke r, desc ribed TYC’s me thods of
a s s e s s i n g a

j u v e n i l e ’ s p r o g r e s s . E a c h j u v e n i l e i s a s s e s s e d i nt h r e e d i f

f e r e n tar e a s : a c a de mic s, behavior , and correc tional theory
. The corre ctional t heory are a is weig hted more he avily than the other two a

rea s i n m ak i n g an overa ll assessment of the juvenile’ s prog ress. Within each a rea , a
ratin g of zer o to fo ur , wi th fo ur be ing the be st r a tin g , is a ssi g ne d. Th e juv e nil e s n e e d to me e t c e rt a in g oals to move from

o n e r a ti n g to th e n e xt. A p p e ll an t a c h ie v e d r a ti n g s o f

A

- 4 an d B
- 4
. H e h ad
ear ned his GED and hig h school diploma, as well as le arningmarke table skills in construction and
c a bin e t mak ing
. Ho we ve r, a pp e lla nt’ s cor re c tio n the or

y ratin g ha d re ma ine d at C-2 fo r m uc h o f h is time at TYC. Adepipe te stified that corr ection theory was important bec ause it re flec ted a juvenile’ s 1 attitude toward his cr ime. The princ ipal rea sons for a ppellant re maining at level two wer e his failure to t a ke re sp on sib ili ty

fo r h is a c tio ns , te nd e nc y to b lame oth e rs fo r h is p ro ble ms , and fai lu re to express remorse or re g ret for his crime.3 A phase assessment hearing is held t o assess a juvenile’s progr ess and whether the juvenile ca

n move from C-2 to C-3. Achieving a C-3 rating shows that the juvenile has move d from understandinghow t h ey

wer e af fec ted in their lives by

their off ense to the e ffe ct their a ctions had
on oth e rs . Ajuv e nil e a t lev e l C-3 ha s re c og nize d the patte rn s o f b e havio r a nd tho ug ht t hat le a d to
c omm itt ingc ri me s and

vic tim izin g oth e r p e op le and a c c e pte d r e sp on sib ili ty

fo r h is a c tio ns . J osh Ethridg e, an a ssociate psy cholog ist at the Giddings State School, testified that he sat in on phase assessment revie ws for appellant in O ctober 2005 and J anuar y 2006. He de scribed h o w i mp o rt an ti twa s fo r t h e s tu d en t s t o l ea rn t o h av e r ea l em p at h y fo r t h ei r v i ct i m s . E t h ri d ge testified that althoug h appellant made prog ress in this are a and w as able to talk about empathy , the
me mbe rs of

the ph a se a sse ssm e nt re vie w te a m did no t fe e l that he wa s be ing g e nu ine or ho ne st i n his fe e lin g s. F ur

the r, he ha d fa ile d to ac c e pt re sp on sib ili ty fo r his a c tio ns , both in s e e min g to b lame the vic tim s o f h is c ri me and in b lamin g oth e rs fo r h is r e fe rr a ls w ith in T YC . T he tr e a tme nt t e a m f e lt that he wa s being dishonest, ma nipulative and still viewed himself a s the victim. Ethridge said that he thought that appellant attempted to “ front” or fake remorse . This inability to display true e mpathy preve nted appe llant from achieving level C-3. Ethridg e ac knowledg ed that he kne w of no studies that linked empathy

and re cidivism, however. Appellant wa s at one time in a spec ialized gr oup within TYC to tr eat c apital offe nders (COG). H is case w orker

while i n that g roup, Max ine C ooper, testified that appellant pre sented “ a ri sk to t he c omm un ity .” She ba se d th is a sse ssm e nt o n h is p a tte rn s o f thi nk ing , his manip ulatio n, his b e i n g d e c e i t f

u l an d s n e a ky, an d

h i s l a c k o f e mp a t h y. S h e s t a t e d

i nh e r “ Y o u t h B e h a v i o r

S u m m a r y” that he had “ demonstrated the ability to maintain appropriate behavior when he makes the eff ort as4

we ll as de mon str ate [d] the a bil ity to m a ste r e xce lle nt s kil ls i n ma nip ulatio n a

nd de c e pti on .” She sa id that a lth ou g h h e ha d ma

ny str on g qu a lit ie s a

nd was a li kab le per so n, his ina bil ity to c ha ng e his patte rn s o f t

hinkin g wo uld

make him

a thr e a t to vic tim ize pe op le in the futur e . H e wa s e ve ntu a lly
remove d from the COG prog ram because of hi s inability to complete the “ Crime Story ” portion of the prog ram. Spec ifically , he lef t out important information about the offe nse and f ailed to display

“ c are and c on c e rn ” fo r o the rs . Nicolas Ramos, appellant’ s instructor i n the cabinet construction prog ram, testified that he ha d ta

ug ht a pp e lla nt f or tw o y e ars and

ne ve r h a d b e havio ral pr ob le ms w itha pp e lla nt. Appellant spent seve ral hours a day in his class. He said that appellant would be able to g et a job wi tho ut a ny dif fi c ult y be c a us e of the sk ill s he ha d de ve lop e d. Ap pe lla nt wo uld he lp n e w s tud e nts lear n the shop’s rules a

nd g uidelines. Howe ver, Ramos never spoke t o appellant a bout the crime or
a pp e lla nt’ s f e e lin g s a bo ut h is p a st. Som e tim e s a pp e lla nt wo uld be de pr e sse d a

bo ut t he po ssi bil ity of being transfe rre d to TDC and R amos would tell him to talk to his case worke r. I n g ener al, he doe s not rea d a st u d en t ’s file unless he ha s a ser ious conce rn about that student, so he w as not familiar with the details of appe llant’s crime or his disciplinary

rec ord with i n T YC . He would be
c omf or ta ble wo rk ingwi th a

pp e lla nt o r h a vin g a

pp e lla nt l ive ne xt doo r t o h im. Br andon Gr igg s, a correc tion office r, had worke d at Gidding s for nine months at the time of the transf

er hearing
. Appellant was housed i n Grig g s’s dorm. Grig g s never had a behaviora l problem with appe llant. Appellant pa r ticipated we ll in the behavior g roup that Grig g s ran a nd helped
ou t th e oth e r s tud e nts . H e sa id t hat a pp e lla nt h a d e xpre sse d sh a me a

bo ut his of

fe ns e . App e lla

nt t old5

Grig g s that he wanted to g et a job, have his own family and place to live, and build a socc er f ield for local kids. I n his opinion, appellant was re habilitated.

L eonar d Cucolo, the TYC court li aison, prese nted the for mal rec ommendation that
a pp e lla nt b e tr ans fe rr e d to TD CJ. He g a ve his op ini on that a pp e lla nt’ s c a se wa s a

ha rd on e that in many way s “boiled down to” subjective deter minations of the staff

that evaluated him. Howeve r, he also de scribed the assault on another TYC juvenile which occur red six months befor e the transfer h ea ri n g, af

t er ap p el l an tkn ew h e wa s b ei n g ev al u at ed fo r po s s i b l e tr an s fe r t o T DC J an d i na “ h i gh restric tions” environment. Cuculo considere d this a ssault a n indication that appellant was still using a lot of the same ty

pe of thinking and beha vior that ca

used his crime e ven af

ter five y ear s of e xpos ur e to r e ha

bi li tat iv e prog ra

ms. Th e re we re no mor e int e ns ive pr og ra ms a va ila ble to
a pp e lla nt t ha n th e on e s th a t he ha d a lr e a dy tr ie d. I n any e ve nt, a pp e lla nt wo uld no t be a

ble to r e ma in at TYC af ter a g e 21. I n ad d ition to t estimony about appe llant’s behavior while in TYC, there was tes timon y fr om v ari ou s c ouns e lor s c on c e rn inga pp e lla nt’ s h ist or

y be fo re he a tte mpt e d to c omm it capital murde r. He had bee n ref err ed to the juvenile sy stem for a g g ravated assault for threatening his mother with a kni fe; a ssault with injury for hitting his brothe r with a stick; ar son; truancy ; and making a fa lse repor

t. He had a ssaul t ed t ea ch ers a nd peer s, made ter

roristic threats, possessed
wea pons, and ca lled in a bomb threat to his school when he wa s 1 3
. I n a p s y cholog ical re port that was in e v id e n c e , h e s a id th a t h e h a d b e e n f a s c in a te d w it

h kn iv e s f

r o m an e ar ly a g e and had sta bb e d o ne g angme mbe r. Whe n a sk e d a bo ut th e st abb ing , h e state d th a t he “ lik e d to g e t pe op le back” and said that he i n t en d ed t o hurt or kill the g angmember. D aiss testified that appe llantOne psycholog ical re port classified it as “ childhood onset, ” making the disorde r eve n more 2 sever e. 6 had told her a

bout conduct that we nt outside the officia l rec ords. Most of the beha vior involved g ang -re lated ac tiviti es such a s b u rgl ar ies, destruc tion of proper ty , and tra

nsporting c ocaine and marihuana

for the g ang . He a lso said that he had be en “jumped into” a g angcalled Mur der Cide Crips at ag e 11. Howe ver, she and other of appe llant’s thera

pists were suspicious tha t he wa s
o v e r s t a t i n g h i s g a

n g h i s t o r y. Appellant was d es cr i b edas h av i n g b ee nd i agn o s edwi th “conduc t disorder, a dolesce nt ty pe, seve re.” Such a diag nosis indicates a risk for future c riminal behavior. 2 The tar g ets of the crime underlying a ppellant’s adjudication as delinquent wer e the pare nts o f ap p el l an t ’s girlfrie nd and had f orbidden he r to see him any more. Appe llant, who was fourtee n at the time, enter ed their home while they wer e asle ep. He was dre ssed entire ly in black, with a banda

nna and pa

nty hose hiding his f

ace . He had taped his shoe s to minimize f ootprints. He
car ried two knives tape d to his leg s. The mother a wake ned first a

nd aler ted the father that someone
wa s at the do or . He c on fr on te d a pp e lla nt a nd , in the a lte rc a tio n th a t f

oll ow e d, a

pp e lla nt s ta bb e d b oth the father a

nd mother. Eventua lly , the couple w as able to restra in appellant and c all the police. At the hea ring , the pare nts te stified that they would be so frig htened if appe llant were rele ased that they

would obtain conce aled ha ndg un licenses. The fathe r testified that he sustained six kn if e wo un ds fr om t

he a tta c k. At

the tim e of

th is hearin g , h e sti ll e xpe ri e nc e d p ro ble ms aff ectingthe use of his rig ht arm bec ause of the kni fe wounds. The mot her testified that she ca n no longe r sleep w ithout li g hts on, ge ts up two or thr ee t i me a nig ht to check on the family , no longe r7

g oes out at nig ht, and s leeps facing the door. She said that they had to move out of their pr evious ho me and c ha ng e job s. Marc us Ramirez, the p ro g ram dire ctor for the super intensive parole supervision prog ram for

the State of Te x as, desc ribed the se curity features of the prog ram. Howeve r, he said that only about one in ten offender s ref err ed to the progra

m is actua lly place d in the prog ram. The court had no powe r to place the juvenile in the prog ram; the pa role boa rd has that powe r. Appellant’s mother

did not testify , but was allowe d t o s p eak. She expressed sy mpathy to the victims and said that her son ha d lear ned that what he did was wrong while i n TYC
and ha d e xpre sse d r e g re ts f

or his c ri me . Sh e did

no t c on sid e r h im a

thr e a t to the vic tim s.
Discussion Stan dard of Revie w

A juv e nil e c omm itt e d to TYC und e r the fa mil y c od e may be re fe rr e d to th e juv e nil e court for approva l of the transfe r of the child to T DCJ if the juvenile is betwe en the a g es of sixt een and twenty -one, the juvenile has not complete d his sentence , and the ju v en i l e’ s conduct indicates that the welf

are of the c ommunity

require s the transfe r. Tex. Hum. Res. Code Ann . § 61.079. The standa

rd of r eview f

or a tra nsfer decision i s abuse of

discretion. In re J

.L. C. , 160 S.W .3d 312, 31 3 (T e x. Ap p. —D a lla s 20 05 , n o p e t.) ; In re C.L. , 874 S.W .2d 880, 886 (Tex. App.—Austin 1994, no writ). The revie wing court an al y z es t h e district cour t’s decision to see if

it was made w ithout ref ere nce to guidingor principles. J .L. C. , 1 60 S.W. 3d

a t 31 3; C.L. , 874 S.W .2d at 886. A tra nsfer will only be reverse d if the court acte d in an unre asonable and ar bitrary manner . J

.L. C. , 160 S.W .3d at 313.8 The trial c ourt may

consider the following fac tors when e valuating the transf er: ( 1 ) the exp e r ie n c e s an d c h ar a c te r o f th e p e r s o nb e f

o r e an d a f te r the commitment to the y outh commission; (2 ) the natur e of

the pe na l of

fe ns e that th e pe rs on

wa s found to have c ommitt ed and the manner in which t h e off

ense w as committed; ( 3 ) t h e a

b i l i t i e s o f t h e p e r s o nt o c o n t r i b u t e t o s o c i e t y; (4) the protection of t he victim of the off ense or any member of t h e v i c t i m ’ s f

a m i l y; (5) th e rec ommendations of the y outh commission and the p r o s e c u t i n g a t t o r

n e y; (6) the best intere sts of the person; a nd (7) any

other fa ctor re levant to the issue to be de cided. Tex. Fam. Code Ann. § 54.11( k). T h e trial c ourt nee d not consider a ll of the listed fac tors and may assig n differ ent weig hts to the factor s it considers. J .L. C. , 1 60 S.W. 3d

a t 31 3- 14 ; C.L. , 874 S.W .2d at 886. Application Ap pe lla

nt h a d a n e xten siv e his tor

y of of fe ns e s b efor e his c omm itm e nt t o T YC
. F ur the r, mos t of

tho se of fe ns e s w e re of

a vio le nt n a tur e : a ssa

ult s a g a ins t f

a mil y me mbe rs and

oth e rs , ars on , an d ter

ro ri sti c thr e a ts. He ha d als o be e n d ia g no se d w ithe arl y on se t c on du c t di so rd e r, a ri sk fact o r fo r re- offe nding. T he sec ond fac tor, the off ense c ommitt ed and the manner in which the offe nse wa s commi t t ed , weig hs heavily ag ainst appellant. At four teen, with the only

provocationFr om some of t he TYC reports dea ling with the unde rlying of fense , it appear s that appellant’s 3 g irlfriend a sked appe llant to kil l h er pa rents. In some repor

ts, appellant disclosed that he had pla nn e d to kil l he r a s w e ll. 9 be ingthe dis a

pp ro va l of

his re la tio ns hip wi th t

he ir da ug hte r, he c omm itted a bru tal and c are fu lly
c a lc ulate d o ff

e ns e a g a ins t th e pa

re nts
. 3 Wei g hin g in a

pp e lla nt’ s f a vo r, he ha s d e ve lop e d

t e c hn i c a l s kil ls that w ou ld a llo w h im to contribute t o society
. He completed hi s high sc hool education and secur ed mar ketable skills that
wo u l d al l o w h i m t o b e se l f- s u

p p o rt i n g. Ho we v er , as d et ai l edi nt h e t es t i m o n y at t h e t ra n s fe r h ea ri n g, the profe ssionals working with him did not think that he had d evelope d cer tain very fundame ntal attitudes and values t hat would allow him to use these skills and func tion in society . He ha d not sh ow n e mpa

thy fo r h is v ic tim s, wa s p ro ne to b lame oth e rs for his pr ob le ms, and

c on tin ue d to us e violence, a s demonstrated by his attempted assault on another juvenile while aw are that he wa s being evaluated for possible tra nsfer to prison. Although a

ppel l an t has made no threats toward the victims, they fee l endang ere d should he be re lease d. Appellant’s casew orker s testified t hat appe llant continues to see himself a s the victim of the father’s “perse cution” in harboring an unfounde d dislike of appellant that r esulted in the sever ing of

appellant’ s relationship with the daug hter. Such a thought pr ocess is par

t of the ov e r a l l c o n c e r

nt h a ta p p e l l an ts t i l l t h o u g h ti nt h e s a m e w ay t h a tl e a d t o h i s c o m m i t m e n tin the first plac e. The c asew orker s and psy cholog ists who had worked with appellant re commended transfe r. The core conce rn about appe llant was his failure to show empathy toward his victims and failure to take responsibili ty for his actions. Although one correc tions office r said that he had hea rd10

appellant e x press shame for wha t he did, that evidenc e wa s contradic ted by the var ious casew orker s who did not think that appellant felt empathy or re morse. One psy cholog ist, J osh Ethridg e, testified that he thoug ht that appellant attempted to “ front” or fake his remorse. He was remove d from the COG prog ram be cause he fa iled to acc urate ly descr ibe his crime. Appellant arg ues t hat he ha d done we ll in his aca demic and voc ational educ ational endea vors, and that his B- 4 (hig hest level) be havior rating indicates that his behavior ha d improved at TYC. A p p el lant did not have the lar g e number of re fer rals that some other

juveniles did. Howeve r, he did have seve n cate g ory one re fer rals, including the attempted a ssault. Withre g ard to t

he pe rs on ’s be st i nte re st f a c tor , th e State no te s th a t it is “ dif fi c ult to argue that a pe rson is best serve d by limit ing his fr eedom.” The State notes his pre -TYC beha vior
was mar ked by a st ring of crimes, truanc y , and mi sbehavior. I n the structure d environment of T YC howeve r, he ha d been a

ble to acc ompli s h v ar i ous g oals. Appellant uses the same e vidence of prog ress to ar g ue for

parole
. The foc us of the eva luation was that appe llant continued to display the same thoug ht proce sses, in particular lack of empathy and failure to t ake r esponsibility for his ac tions, that resulted in his TYC placement. Without such chang es, the staf f eva luation was that transf er to TDCJ was the most a ppropriate place ment. Appellant’s c ounsel at trial vig orously cross-e x amined the va

rious TY C c a s e w o r

k e r s a b o u tt h e i r l a c k o f c o n t a c tw i t h R a m o s an d

G r i g g s , w h o s p e n tm o r e t i m e wi th
a pp e lla nt t ha n th e c a se wo rk e rs and

wh o h a d a

mor e favo rable o pin ion of a pp e lla nt t ha n th os e
case worke rs in an attempt to show that these va rious repor

ts were defic ient and to plead f or par ole.11 Th e c ourt e ng a g e d in

a tho ro ug h ana ly sis of the e vid e nc e . T he c ourt sp ok e a t le ng th to a pp e lla nt. She tol d h im that th e re we re t wo fun dame nta l r e a so ns to s e nd him to t he TY C: reha bilitation and punish m en t
. She told him t hat many times she had opposed the TYC’s
rec ommendation. She said that she did not think that he had be en able to connec t with Adedipe as
a ca seworke r, and she was not sure she blamed a ppellant for that. She noted that Ramos, the shop te a c he r, a pe rs on wi th w ho m he c on ne c te d, “ drew a l ine ” a bo ut h owe ng a g e d h e wo uld be c ome with the psy cholog i ca l aspec ts of his students. But, she also told appellant that he had not done “the ha rd work” of conf

ronting and dea ling with what he ha d d o n e, n o t “put[] up walls” to block what he ha d done, say

ing: “ And whethe r y ou do that at TYC, or on y our own, or at TDCJ , y ou have to let y ourself f

eel, live, a

nd breathe, and quit trying to build a wal l ar o u n d y ourself to a ct like it didn’t happen; bec ause it di d. And i t is that problem t hat I have that preve nts me from g ranting y our re quest.” She observe d that the only time a ppellant made e y e conta ct with her w as whe n the fathe r said that he f

org ave a ppellant and a

ppell an t h ad a look of shock on his fac e. She noted that she had not he ard a

ny thing f rom appe llant about wanting to do something to “make it up” to the victim. The court noted that “eve n th o s e wh o b elieve in you the most,” did not think t hat he ha d
ever internalized what he did. The co u rt co n cl uded: “I do this because y ou committed a heinous crime, a nd y ou have not c onfronted it. And I don’t know if society is safe , and y ou have some more time to pay .”12 Conclusion There was e x tensive testimony about appe llant’s perf

ormanc e in TYC. The c ourt’s statements at the c lose of the he aring made it clear that she had c onsidered f actor s in appellant’s favor as well as fac tors working ag ainst him. Ba sed on this recor d, we c annot say that the cour

t’s deci s io n w a s ma d e w it

h o u t r e f e r e n c e to g u id in g r

u le s o r p r in c ip le s o r th a t th e c o u rt a cted in an
unrea sonable a

nd arbitra ry manner . Se e J

.L. C. , 160 S.W .3d at 313. Acc ording ly , we a ffirm the tria l court’s or der.

W. Kenneth L aw, Chief Justice Be fore Chief J ustice L aw, Justi ces Pury ear and He nson Affir med Filed: August 23, 2007