## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

____ _________________

______ No. 02

- 19

- 00261

- CV

_ __ ________________________

On Appeal from the 415th Distric t Court Parker County, Texa s Tr ia l Court No. JV16

- 0043

Before Birdwell, Bassel , and Wallach, JJ. Memorandum Opinion by Justice Wallach 

### I N THE 

### M ATTER OF 

### P.S.2 MEMORANDUM OPINION Appellant P.S. appeals the trial court ’ s order transferring him from the custody

o f the Texas Juven ile Justice Department (TJJ D) to the Texas Department of C riminal Jus tice ’ s Instituti onal Division (TDCJ )

. As a ju venile in May 2017 , P.S. ple d

true to fiv e first

- degree

- felony coun ts of a ggravated sexual assault of a child , s ee Tex. Pena l Code Ann. § 22. 021 , and was given a se ven
- year determinate sentence with the possibility of a transfer to TDCJ , see Tex. Fam . Code Ann. § 54.04 (d) (3)(A )(ii). After a Jun e 2 019 hearing , the trial court ordere d P.S. transferred to TDCJ to serve the remain d e r of his seven

- year sentenc e. On appeal, P.S. arg ues that this order was an abuse of the tr ial court ’ s discretion. We disagree and affirm the trial court ’ s order. Backg roun d P.S. admitted to twice forcibly sodomiz ing two eight

- year
- old children , a gi r l and a boy, and once forc in g the young girl to per form oral sex . The trial co urt found that P.S. ’ s and the community ’ s best interest would be best served by committing hi m
to TJ JD for sev en years , in part due to the seriousness of the aggr a v ated

- sexual

- assault offen se s, a history of aggress ive behavior, and the inadequacy of local resources available to properly rehabilit ate P.S. After two years in TJJD ’ s custody at Gaine sville State School , P. S. returned to the trial court a wee k before his nineteenth birth day in June 2019 for a determination of whether he should be rele ased o n parole or transferred to TDCJ

.3

At the hearing, the trial court hear d testimony about P.S. ’s f ifty

- s even write

- ups for misconduct while at Gainesville St a t e School

. Forty of tho se took place in an eighty

- day span of detention pr ior to his transfer to the high

- restriction facility at Ga ines vill e State Schoo l. And wh ile most of the infractions were for min or rule

v iolations

— such as t aking t o o long in the shower, not mak ing his bed , or talking out of turn

— at least five were for majo r r ule violations which would have be e n considered crimes if committed outside the system

. He received five infractio ns for refu sing to submit t o handcuf f s , and eight incidences resulted from threats t o hurt himself or his peers. I n one particular instance, he refused to comply with a supervisor ’ s order, said that the supervisor was not in charge and that his peers woul d listen to him instead, a n d refused to be handcuf fed. As the tr ial court summarized at the end of the hea ring, the in fractions held a common thread of defiance

— “ a request to comply with the preexisting rule, which was essentially a pretty simple task tha t he

was requ ired t o perform and requested to perf orm to which he re plied I ’m not going to do it. ” Despite this recorded history of misconduct, Kim Buck testified on behalf of T JJD to its recommendation that P.S. be released on parole. She dismiss ed 39 % of h is infra ctions as P. S. ’ s “ [

j]ust doing teenage stuff. ” Her testimony a lso empha sized P.S. ’ s

acco mpli shments while in T JJD ’ s custody

. H e p articipated in three specialized treatment programs in addition to the s chool ’ s general progra m: a sex
- offe n d er treatment progr am, a n al cohol

- and

- drug trea t ment pr ogram, and a n aggression

-4

replaceme nt tra ining program ; he earned his high school diploma, a welding certification, and a forklift

- operator certification ; and he voluntarily participated i n victim

- awar e n es s activities, tr a uma
- focused equine

- a ssisted psychotherapy, psychological services, an d a tattoo

- r emoval program. He also completed a n invitational “ Man of Distin ction ” program intended to “ increase students ’ life skills and to help prepare t hem as they m ove forwar d from TJJD , ” and , in t he opinion of a program volunt eer , he had “ mature[d] , ” “ demonstrate [d] great perseverance in dealing with issues, and . . . ha [d] the potential with the a cademic background he has in place

now an d his interes t in continuing that educ ation

. . . to be a pro d uctive ci tizen. ” B y the time of t he hearing, P.S. had reached the last stage of the TJJD rehabili tation program, the “ YES

- Active ” stage when a you th “ demonstrates leadership skills, has very few beha v

i oral problems, [work s m onthly] on the reintegr ation plan, and is kind of a peer leader

. ” Elabor ating on the treatment programs P.S. completed, Buck testified that he entered T JJD with serious alcohol

- and drug 1

- abuse issues , with his addiction issue s compris ing “ a huge port i on ” of his file th at in cl ud ed notations throughout about “ the

ne ed to keep him sober and keep him on task with respect to rehabilitation. ” While at Gainesville State School, h e completed a six

- month , intensive alcohol

- treatm en t

1 His file noted diagnoses of severe cannabis use disor de r ; severe s edative, h ypnotic, or a nxiolytic d isorder ; moderate a lco h ol use disorder ; and moderate hallu cinogenic di sorder

.5

program ; however, it t ook P .S. a litt le over a year to complete it. He also t wice completed a ggression

- replacement training , used to teach “ a ggres sion [ and] ange r management tools [and] how to respond to situation s . . . without the use of agg re s sion. ” According to Buck, h e c omplet ed the tra ining afte r being sanctioned for

“ tell ing the supervisor that he wasn ’ t going to participate in movement. ” The State expressed particular concern with P.S. ’ s pa rticip ation in the sex

offender t r eatment program. First, the State emphasized dis crepancies between P .S. ’ s detailing of the events and the offenses with which he was charged and to w hich he ple d true . The State fo und this concerning because a key componen t of sex

- offender treatment is the o ff

e nder ’ s giving a “ complet e and accurate detailed offense c ycle. ” It also took issue with the absence of a polygraph exam, calling upon P.S. ’ s former p robation officer as a witness to testify that a polygra ph is “ the be st tool ” in sex

offender treatm en t because it “ holds [offenders ] accountable. ” Nevertheless, T

JJD ’ s d iagnostic summary concluded that P.S. had “ low medical treatment needs, low mental health treatment needs, no in t ellectual disability

treatme n t needs , m oderate sexual behavior trea t me nt needs, lo w serious violent offender treatment needs, and modera te subs tance abuse needs. ” Buck based her recommendation for parole on P.S. ’s completion of the general re habilit ation program and assigned programm ing , and his “active[] demonstr a t [ ion of] a leadership role wi th his peers , ” though she also recommen ded th at P.S. complete a “[s]uperintensive supervision program ” asked of all Texas juveniles who ha ve not finished the ir6

minimum sent ence s . She descri bed t h is superinten sive superv i si on program as “house

ar rest ” for “ a bout a year, ” during which the juvenile “we ars a mon itor[,] . . . has to plan his upcoming week with his parole officer [,]

. . . and cannot deviate from t hat. ” In the program, P.S. ’s activ ities would essentiall y b e limited to schoo l, after care, and vi siting his parole officer. Buck had worked w

ith P.S. a nd his ha lf

- sister ( “Sister ”) to de velop a plan for P.S. to live with Sister and her husb and in Califor nia upon release fro m TJJ D

. Sister testified that sh e understood the offenses to which P.S

. had ple d true and that she and her hu sband were wi lling to we lcome P.S. into their home and help him start over, including helping him “ get going ” wi th a bank account, r é sum é , and job

. She averred that he wo u ld have to go to therapy once a week, wh ether court

- ordered or not , and claimed that she had alre ady started working to find a therapist for him

. Buck admitted, however, that she was unsure of Texas ’s abilit y, if any, to enforce a

s uperintensive supe r

vi sion program if P.S. were to move to Calif or nia. In closing , the prosecutor candidly argued tha t she felt th e “ facts and circumstances of the underlying offense [w ere] way more importan t to [her] apparently than to TJJD ” and e mphasiz ed th e sexua l a buse he ple d true to commit ting against t wo eight

- year
- old children

. She also expressed concern about Texas ’ s abilit y
to ensure that P.S. would follow any parole conditions if he were to move to California.7

P.S. ’ s counsel took issue wit h t he trial court ’ s “ broad stroke ” characterizatio n of P.S. ’ s disciplinary misconduct as a thread of “ d efiance ” and r e lied on Buck ’ s
test imony that P.S. did no t exhibit a behavioral problem. T he trial cou rt pointed out the fifty

- seven inf ractions in t he fil e and ex plained,

“ [O]ne thing I h ave here is a young person, not yet an adult, telling his elders and his supervi so rs, essentiall y, I ’ m not goi ng to do what you say while he has this significant

o ffense h anging over his head. ” T he trial court th en granted the State ’ s request to
tra nsfer P.S. to TDCJ

. D iscussion On appeal, P.S. argues that the trial c ourt abused i ts discretion b y t ransfer ring him to the custody of TDCJ

. We review the trial court ’ s decision to transfer a juvenile from T JJ D to TDCJ for an abu se of discreti on. I n re A. M. , No. 02

- 17

- 00029

- CV , 2017 WL 2812452, at *5 (Tex. Ap p.
— Fort Worth 2017, no pet. ) (mem. op.)

. “ We are to review the entire record to determine whet her the t rial court acted without reference to any guidi n g rules and principles. We may not revers e a trial court ’ s decision merely because we disagree with tha t decision, so long as the trial court act ed w ithin its discretionary authorit

y. ” In re J.D.P. , 149 S .W.3d 790, 792 (Tex. App.

— Fort Worth 2004, no pet

. ). An abuse of discretion does not occur when som e evidence of substantive and probative character supp orts the trial court ’ s de ci sion. A.M. , 20 17 WL 2 81 2452, at *5.8

P. S. argues that the trial co urt abused its discretion by declining to fo llow TJJD ’ s r ec ommendation of parole , but t he tri al court wa s not bound to follow TJJD ’ s recommendation

. See

, e.g. , K.L.M. v. State , 881 S.W.2d 80, 84

– 85 (Te x. App.

— Dallas 1 994, no writ) ( “ [T]he trial court doe s not have to follow the recommendations of state offici a ls at the [Texas Youth Commission]. ” ). Rather, it is but one factor the trial

court may consider in a r elease hearing : [T]he cou rt may consider the expe riences and cha racter of the person before a nd after commitment to [TJJD] or post

- adjudication secur e c orrectional facility, the nature o f the penal offense that the person was found to have committed and the manner in which the off ense was comm it ted, the abilities of the person to contribute to soc iety, the protection of the victim of the offense or any me mber of the victim ’ s family, the r ecommendations of [TJJD], county juvenile board, local juvenile prob ation department, and pro se c uting attorney , the bes t interests of the person, and any other fac tor relevant to the issue to be decided. Tex. Fam. Code A n n. § 54.11( k ). “ Within its discre tion , the t rial court may assign different weights to the factors it considers, a nd the court n eed not conside r every fa ctor. ” In re H.C. , No. 02

- 15

- 001 49

- CV , 201 6 WL 354297, at *2 (Tex. App.

— Fort Worth Jan. 28, 2016, n o pet.) (mem. op.). The trial cou rt was therefore not bound by TJJ D ’ s recommendation as report ed by B uck. It could , and presu ma bly d id, con sid er the prose cutor ’ s

re commendation that P.S. b e transferred to TDCJ , largely in light of the disturbing

natur e o f P.S. ’ s original offenses : repeat ed violent sexual abuse of two young children. See Tex. Fam. Code Ann . § 54.11(d) (allowing co nsideration of pr osecutor ’ s9

recommendation); In re L.G.G. , 39 8 S.W.3d 852, 856

– 57 (T ex. App.

— Corpus Christi

– Edinburg 2012, n o p et.) ( affirming trial court ’ s decisi on not to follow youth commission ’ s recommendation of parole , based in part on violent nature of original offe nse of mur d er); cf. K.L.M. , 881 S .W.2d at 8 5 ( explaining that the vio len t nature of

a juvenile offense may b e considered , in part because “ the det erminate sentencing law seeks to employ the ‘ harsh consequences ’ of the criminal system by al lowing a juvenile sentenced under the law to be transferred to the TDCJ ” ). The trial court a lso weigh ed evidence of P.S. ’ s a c co mplishments against evidence of his fift y - seven infraction s , bound by a common theme of defiance and inability to foll ow directio ns and respect authority. S e e L.G.G. , 398 S.W.3d at 856

– 5 7 ( explaining that al though ev idence of appellant ’ s rehabilit ation w as “ significant , ” evi d ence also supported trial court ’ s

conce rn that appellant would reoffend and harm someone else )

. The trial co urt could have also conclu ded that P.S. ’ s plan to move to California with Sister was fatally undermined by the fact th at T DC J c ould not ensure enforcement of su pervis ory

re strictions outside of Texas

. Considering the record as a whole, we cannot conclude that the trial court here

ac ted arbitrarily, unreasonabl y, or without reference to any guiding rules and principles when it or dered that P.S. be transferred to TDCJ. See , e.g. , A.M. , 2017 WL 2812452, at *5 (holding similarly) ; In re D.T. , 217 S.W.3d 741, 743

– 44 (Tex. App.

— Dallas 2007 , no pet.) (holding transfe r w as w ithin d iscretion where appellant had sexually assault ed seve n
- y ear
- old boy and his in

- custody accomplishment s were10

overshadowed by continued disciplinary problems)

. We therefor e hold the trial court did not abuse its d iscr etion and overrule P.S. ’ s s ole issue. Conclusion Having overr uled P.S. ’ s on ly issue on appe a l, we affirm the trial court ’ s order transf erri ng him to the custody of TDCJ

.
/s/ Mike Wallach Mike Wallach Just ice

Delivered: J uly 30, 2020