Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-13-00235-CV

In the MATTER OF J.D.H.M.

From the 289th Judicial District Court, Bexar County, Texas

Trial Court No. 2011JUV00227

The Honorable Carmen Kelsey, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Catherine Stone, Chief Justice

Marialyn Barnard, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: March 19, 2014

AFFIRMED 

Appellant J.D.H.M. appeals an order of transfer, transferring him from the Texas Juvenile 

Justice Department (TJJD) to the Texas Department of Criminal Justice–Institutional Division 

(TDCJ). On appeal, J.D.H.M. raises a single point of error, contending the juvenile court erred 

when it transferred him to TDCJ because the record establishes he should have been placed on 

parole with conditions. We affirm the trial court’s judgment. 

BACKGROUND

According to documents in the record, J.D.H.M. received a call from a female individual 

asking him if he wanted some marijuana. The female claimed she knew a drug dealer they could 

rob. The female individual and a male individual picked up J.D.H.M., who claimed to be using 

Xanax and marijuana that day. The male individual had a gun. When the three arrived at the drug 
04-13-00235-CV

dealer’s house, only J.D.H.M. went inside — he took the gun with him. Once inside, J.D.H.M. 

pointed the gun at the individuals in the house and demanded marijuana, a scale, and the 

television.1 One of the individuals in the home carried the television outside and loaded it into the 

waiting car. J.D.H.M. and the others left. 

Ultimately, J.D.H.M. was arrested. The State filed a petition alleging J.D.H.M. engaged 

in delinquent conduct in that he committed an aggravated robbery. J.D.H.M. stipulated to the 

charge and pursuant to a plea bargain agreement with the State, the juvenile court committed 

J.D.H.M. to TJJD for a fifteen-year determinate sentence, with the possibility of transfer to TDCJ. 

After J.D.H.M. spent approximately two years in the TJJD, the Executive Director of the 

TJJD advised the juvenile court that the agency was requesting J.D.H.M. be transferred to TDCJ 

because he would not have completed his minimum required stay at TJJD before his nineteenth 

birthday. After a hearing, the juvenile court ordered J.D.H.M. transferred to TDCJ to complete 

his sentence.2

 J.D.H.M. perfected this appeal. 

ANALYSIS

As noted above, J.D.H.M. contends that the trial court abused its discretion in transferring 

him to TDCJ rather than placing him on parole. We disagree. 

Standard of Review

We review a juvenile court’s decision to transfer a juvenile from TJJD to TDCJ under an 

abuse of discretion standard. In re L.G.G., 398 S.W.3d 852, 855 (Tex. App.—Corpus Christi 2012, 

no pet.); In re J.J., 276 S.W.3d 171, 178 (Tex. App.—Austin 2008, pet. denied). A trial court 

abuses its discretion if it acts without reference to guiding rules or principles of law. See id. 

1 In another portion of the record, it states J.D.H.M. demanded only the television. 

2 Once the Executive Director of the TJJD refers a juvenile for transfer, the juvenile court must hold a hearing to 

determine whether transfer for completion of a determinate sentence is appropriate. TEX. FAM. CODE ANN. § 54.11(a), 

(i) (West Supp. 2013). 

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In determining whether there was an abuse of discretion, we review the entire record. Id. “If some 

evidence exists to support the juvenile court’s decision, there is no abuse of discretion.” L.G.G., 

398 S.W.3d at 855 (emphasis added); see In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San 

Antonio 2006, pet. denied). We will not substitute our judgment for that of the juvenile court, and 

we will not reverse a decision by the juvenile court simply because we would have decided the 

matter differently. L.G.G., 398 S.W.3d at 855. 

The Evidence

At the transfer hearing, the State called Leonard Cucolo, the TJJD court liaison. Mr. 

Cucolo had prepared a summary report that was submitted to the juvenile court prior to the hearing. 

Mr. Cucolo began by noting that in 2010, prior to J.D.H.M.’s adjudication for the aggravated 

robbery, J.D.H.M. had prior adjudications for possession of marijuana and evading arrest. 

Although J.D.H.M. did well academically while in TJJD — obtaining a GED, vocational 

certificates, and attending some college courses — his behavior had been a concern, causing Mr. 

Cucolo to recommend a transfer to TDCJ. 

According to Mr. Cucolo, while in custody, J.D.H.M. “engaged in nine major rule 

violations.” Mr. Cucolo stated major rule violations are new offenses committed by a juvenile 

while confined in a TJJD facility that usually involve “some type of aggressive conduct.” In 

J.D.H.M.’s case, the rule violations included assaults and possession of marijuana and other 

contraband. Mr. Cucolo stated this behavior by J.D.H.M. was “pretty consistent and severe 

throughout his stay.” However, Mr. Cucolo admitted that during the last six months, there was a 

reduction in J.D.H.M.’s severe behavior. Nevertheless, he had engaged “in some pretty serious 

behavior while he’s been confined . . . .” Mr. Cucolo described it as a pattern of behavior. 

Mr. Cucolo testified J.D.H.M. had seventy-six documented incidents of misbehavior, and 

sixty-two of those resulted in referrals to security. In addition, there were forty incidents of 

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program disruption. There were five assaults and three incidents of fighting. With regard to the 

assaults, there were times when J.D.H.M. was the aggressor, assaulting other juveniles within the 

facility. J.D.H.M. was also aggressive with TJJD staff, and in one incident, took documents 

belonging to the facility and destroyed them. 

Mr. Cucolo testified J.D.H.M. had yet to advance to the Youth Empowerment Stage of the 

program, which is the parole readiness stage. Once in this stage, the juvenile is considered ready 

for parole because he has been actively participating in daily groups, continues to work and 

complete academic objectives, and his behavior remains stable. J.D.H.M. was able to complete 

the alcohol and drug program on his second attempt. He was removed from the program the first 

time because of his behavior. J.D.H.M. also completed the “aggression replacement training 

program,” basically an anger management program. Despite the completion of this program, his 

aggressive conduct continued, though admittedly J.DH.M.’s last behavioral incident was several 

months before the transfer hearing. 

When asked about family support if J.D.H.M. was released on parole, Mr. Cucolo testified 

he was only aware of a grandmother — J.D.H.M.’s mother passed away a few months before the 

hearing. Thus, J.D.H.M. would be sent to a halfway house with little or no family support, still 

having issues with aggression and substance abuse, making him a danger to the community and 

himself. 

Although the facility, the Giddings State School, recommended parole for J.D.H.M., Mr. 

Cucolo recommended transfer to TDCJ. Mr. Cucolo said his decision was not easy for him, but 

considering J.D.H.M.’s behavior during confinement, his previous history, and the lack of family 

support, he had no choice because J.D.H.M. is “too much of a risk right now and not ready for 

release.” The Executive Director of the TJJD, on behalf of the agency, joined Mr. Cucolo’s 

recommendation. 

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In support of parole, J.D.H.M. called Dr. Enrique Covarrubias as a witness. Dr. 

Covarrubias, a psychologist with the Giddings State School, performed a psychological evaluation 

of J.D.H.M. and prepared a report, which was considered by the juvenile court. Dr. Covarrubias 

testified he spent two days evaluating J.D.H.M. He also consulted with facility staff. Both the 

doctor and the facility recommended parole. 

Dr. Covarrubias testified that at the time of the evaluation, J.D.H.M. was working in the 

cafeteria. He had received a certification in “automotive service excellence” and was taking 

vocational classes. The doctor documented only fifty-six incidents of misbehavior, explaining that 

he did not consider self-referrals, any incident overturned on appeal, or security extensions —

extensions of stays in security when the juvenile was already in security for some other reason. 

Dr. Covarrubias stated he does not include such incidents because they are not “necessarily 

misbehavior.” 

The doctor stated he has seen “quite a bit of improvement” in J.D.H.M.’s behavior over 

time, noting J.D.H.M. entered the facility with a ninth grade education, but obtained his GED and 

completed several facility programs. He was also taking “some college exam, entrance exam.” 

J.D.H.M. told the doctor he wanted to take college courses, knew there were “loan programs” that 

might allow him to do so, and would be willing to work any job to pay for it. The doctors said the 

discussion about financial planning was something he does not typically “hear from other kids.” 

J.D.H.M. received a vocational certification and was a peer mediator. Dr. Covarrubias said he saw 

J.D.H.M. as “a youth with a lot of resilient factors considering his history.” The doctor then 

provided details about J.D.H.M.’s childhood. 

When J.D.H.M. was a young boy, he was abused and neglected; his family had an extensive 

history with Child Protective Services. J.D.H.M.’s parents had substance abuse problems that led 

to legal issues. His father died at age thirty-five, and his mother and best friend passed away in 

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the months before the transfer hearing. All of these losses caused J.D.H.M. “grief related issues.” 

According to Dr. Covarrubias, J.D.H.M. has family support from his grandmother, and he also 

“talks quite a bit to his brother.” The doctor said he mentioned other family members, but they 

did not really focus on them. 

With regard to J.D.M.H.’s “Individualized Case Plan,” which the doctor described as a 

report card for the juveniles, he was originally identified as high risk, but he made improvement. 

Although J.D.M.H. has behavior problems, he felt remorse, and the doctor felt he was functioning

at a high level. The doctor testified he believed J.D.H.M. would be more successful in a halfway 

house than in prison. Dr. Covarrubias felt J.D.H.M. needed the structure a halfway house would 

provide: curfew, drug testing, and demands to work. If J.D.H.M. went to prison, the doctor feared 

he would lose the ground he had gained in the TJJD facility. 

J.D.H.M.’s maternal grandmother testified on his behalf. She provided information on his 

difficult childhood and his mother’s instability. According to the grandmother, J.D.H.M.’s father 

was emotionally abusive to J.D.H.M. and his mother. She described the father as “a bit of a control 

freak person.” He isolated J.D.H.M. and his mother from the mother’s family. After J.D.H.M.’s 

father died, his mother had trouble — “single parenting . . . was more than she could handle.” 

J.D.H.M.’s mother was unable to maintain a job. 

Both his grandmother and two of his maternal aunts testified they have seen improvement 

in J.D.H.M. since his placement in TJJD. The grandmother stated that when J.D.H.M.’s mother 

was hospitalized before her death, J.D.H.M. came to the hospital and the grandmother “saw a 

different human being.” J.D.H.M. was calmer, his eyes were softer, and he embraced the family, 

seeming to trust them. His grandmother testified that if he were paroled, she and her four sisters 

would be supportive, but she believed a controlled environment, such as a halfway house, would 

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be appropriate. She described J.D.H.M. as capable and bright, a leader who simply made “some 

horrible choices.” 

Application

In determining whether a juvenile should be transferred, the juvenile court may consider 

several factors, including: 

• the experiences and character of the juvenile before and after commitment to 

TJJD;

• the nature of the offense the juvenile committed and the manner in which it was 

committed;

• the abilities of the juvenile to contribute to society;

• the protection of the victim of the offense or any member of the victim’s family;

• the recommendations of the TJJD and the prosecutor;

• the best interests of the juvenile; and

• any other factor relevant to the issue to be decided.

TEX. FAM. CODE ANN. § 54.11(k). Although the court may consider these factors, it is not required 

to consider each one, and is expressly permitted to consider relevant factors not set forth in section 

54.11(k). J.J., 276 S.W.3d at 178; see TEX. FAM. CODE ANN. § 54.11(k). 

The record establishes the juvenile court looked at the evidence in light of the relevant 

section 54.11(k) factors. The court noted “the good things” J.D.H.M. accomplished, but recalled 

that at the time of sentencing, she warns those like J.D.H.M. with determinate sentences about 

their behavior and its possible ramifications with regard to subsequent transfers to TDCJ. The 

juvenile court stated it was possible J.D.H.M.’s behavior had changed simply because he realized 

he was turning nineteen and he would have to come back to court with regard to a transfer to TDCJ. 

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Considering J.D.H.M.’s offense — aggravated robbery — and his extensive behavioral 

issues during his time in TJJD, coupled with the recommendations from Mr. Cucolo and TJJD, we 

cannot say the juvenile court abused its discretion in ordering J.D.H.M. transferred to TDCJ. Mr. 

Cucolo presented evidence that J.D.H.M. was not a good candidate for even structured parole 

based on his behavioral problems while at TJJD, his drug and alcohol issues, and the fact that he 

had not yet fulfilled the minimum three years of his sentence. Although Dr. Covarrubias thought 

that it was in J.D.H.M.’s best interest to be released into a structured parole environment based on 

his recent behavioral improvements, mental stability, and academic success, the court did not find 

his opinion compelling, perhaps because J.D.H.M’s recent improvement was at a time when he 

knew transfer was possible. 

Clearly, there was some evidence to support the juvenile court’s decision to transfer

J.D.H.M. to TDCJ as opposed to releasing him on parole. Because there was some evidence to 

support the court’s decision, we hold there was no abuse of discretion. See L.G.G., 398 S.W.3d at 

855; D.L., 198 S.W.3d at 229. 

CONCLUSION

Based on the foregoing, we overrule J.D.H.M.’s point of error and affirm the trial court’s 

judgment. 

Marialyn Barnard, Justice

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