COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

I N THE MATT ER OF: L .L ., J R., A J UVENI L E. § § § § § § No. 08-10-00073- CV

Appea l from 65th District Court of El Paso County , Texas (TC # 05,00800)

O P I N I O N L .L ., J r., a juvenile appea ls from an order requiri n g him to reg ister as a sex offe nder. See T E X .C O D E C R I M .P R O C .AN N . art. 62.357(b)( West 2006)(a uthorizi ng appea l of

juvenile court’s order requiring sex offender

reg istration). For

the re asons that follow, we aff irm. F ACTUAL SUMMA RY I n 2007, the State filed a petition based on delinquent conduct alleg ing that fourtee n-y ear -old Appellant committed the offe nse of indece ncy with a child by contac t. The juvenile court, based on Appellant’s written stipulation, found that Appellant eng ag ed in delinquent conduct as alleg ed in the petition, and the court place d Appellant on supervised p ro b at i o n . An adjudication of delinquent conduct for indece ncy with a child require s the juvenile to reg ister as a sex offe nder. See T E X .C O D E C R I M .P R O C .AN N . art. 62.001(5)(A) (We s t S upp. 2010). As permitted by Article 62.352(b)(1) , the juvenile court defe rre d making a decision on reg istratio n while Appellant participa ted in a sex offe nder tre atment prog ram. See T E X .C O D E C R I M .P R O C .AN N . art. 62.352 (b) (1). Af ter Appe llant completed the prog ram, the juvenile court enter ed an order requiring Appellant to r eg ister as a sex offe nder. This a

ppeal f ollows.SEX OFF ENDER REGISTRATION

I n his sole issue, Appellant contends that the juvenile court abused its discretion by requiring him to reg ister as a sex offe nder beca use the court failed to include the require d finding s in its order

. Ap p el lant additionally arg ues the evidenc e does not support the court’s decision to require reg istration. Relev ant Law Article 62.352(a) of the Code of Criminal Procedur e require s the juvenile court to enter an order exempting a juvenile from re g istration if the court de termines: (1) tha t the protec tion of the public would not be incre ased by reg istration; or (2) that any potential incre ase in pr otection of the public resulting from reg istration is clea rly outweighe d b y t h e anticipated substantial harm to the juvenile and the juvenile’s family that would result from reg istration. T E X .C O D E C R I M .P R O C .AN N . art. 62.352(a)

. The juvenile court may also defe r decision on requiring reg istration until the juvenile has complete d trea tment for the se x ual offe nse as a condition of probation or w hile the juvenile is committed to the Texas Youth Commi ssion. T E X .C O D E C R I M .P R O C .AN N . art. 62.352(b)( 1). I f the
court enters an order pursuant to Article 62.352( b)(1) , the cour t reta ins discretion and jurisdiction
to require , or ex empt the j uvenil e fr o m , reg istration on the s ucce ssful or unsuccessful completion of trea tment. T E X .C O D E C R I M .P R O C .AN N . art. 62.352(c)

. Following succe ssful completion of
trea tment, the juvenile is exempted from reg istration unless a hear ing is held on motion of the state and the court deter

mines the interests of the public require reg istration. T E X .C O D E C R I M .P R O C .A N N . art. 62.352(c)

. The standard of revie w is whether the juvenile court committed proce dural err or or abused its discretion in requiri n g t h e j u venile to reg ister as a sex offe nder. T E X .C O D E C R I M .P R O C .AN N . art. 62.357(b)

. Nece ssity of W ritten FindingsAppellant’s first arg ument conce rns alleg ed proce dural err or. Citi ng In the Matter of J.D.G. , 141 S.W .3d 319, 321 (Tex.App.--Corpus Christi 2004, no pet.), Appellant contends that the juvenile
court erre d by

failing to enter a

n order which contains the findi ng s require d by Article 62.352(a). The Corpus Christi Court of Appeals noted i n its opinion that the j uvenile court had made cer tain written finding s in its order , but the court did not hold that the finding s must be included in the order

. W h ile Article 62.352(a) require s that the juvenile court exempt a juvenile from reg istration if the
court finds cer

tain fac ts, the statute does not require that the finding s be included in the order

. This portion of Appellant’ s arg ument is without m erit.

Abuse of Discretion and Sufficiency of the Evidenc e Appellant next arg

ues that the juvenile court abused its discretion beca use the evidenc e does not support the juvenile cour t’s implied findings. As part of his contention that the juvenile c ourt abused its discretion, Appellant may challeng e the l ega l and fac tual sufficie ncy of the evidenc e

s u p p o rting the court’s implied finding s of fac t. In the Matter of M.A.C. , 999 S.W .2d 4 4 2 , 4 4 6 (Tex.App.--El Paso 1999, no pet.). I n our revie w, we eng ag e in a two-prong ed inquiry : (1) Did the trial court have sufficie nt information upon which to exercise its discretion, and (2) did the trial court

err in its application of discretion? In the Matter of M.A.C. , 999 S.W .2d at 446. T h e t ra d i t i o n al sufficie ncy of the evidenc e standards apply to the first question. Id

. Once we h av e d et er mined whether sufficie nt evidenc e exis ts, we must then decide wh et h er t he juvenile court made a

rea sonable decision or was it arbitra ry . Id. A trial court abuses its discretion if it acts in an arbitra ry

or unrea sonable manner , without ref ere nce to g uiding rules or principles. Bowie Mem orial Hospital

v. W r i g h t , 7 9 S.W .3d 48, 52 (Tex. 2002). When revie wing a matter committed to a trial court’s discretion, we may

not substit ute our own judg ment for that of the trial cour

t. Id. Appellant direc ts his sufficie ncy arg ument at the two finding s require d by Article 62.352(a) :(1) that the protec tion of the public would not be incre ased by reg istration; or (2) that any potential

incre ase in protec tion of the public resulti n g fr o m reg istration is clea rly outweig hed by the anticipated substantial harm to the juvenile and the juvenile’s family that would result from reg istration. The juvenile court had, howeve r, previously made the decision to defe r the reg istration decision until afte r Appellant completed sex offe nder trea tment. See T E X .C O D E C R I M .P R O C .AN N . art. 62.352(b) (1). Conseque ntly , Article 62.352(c) comes into play

. Under that statute, Appellant is e x empt from reg istration if he succ essfully completed the trea tment pr og ram unless a hear ing is held on motion of the State and t h e co u rt deter mines that the interests of the public require s reg istration. T E X .C O D E C R I M .P R O C .AN N . art. 62. 3 5 2 ( c )

. Wh il e A r ti c le 6 2.352(a) require s Appellant
to establish cer

tain fac ts in order t o be exempt from reg istration, Article 62.352(c) require s exemption if Appellant succe ssfully completed sex offe nder trea tment unless the court finds that the interests of the public ne verthe less require s reg istration. 1 I n the absenc e of written finding s, we will examine the implied finding s which could support the juvenile court’s decision. The juvenil e co u rt could have found under Article 62.352(c) that Appellant succe ssfully completed the tr eatment prog ram but the interests of the public require s

re g istration. Appellant does not expressly state i n his brief whether he is challeng ing t h e l ega l o r fac tual sufficie ncy of t he evidence suppor ting the implied finding under A rticle 62.352(c ), but we have construed his a

rg ument as a fac tual sufficie ncy challeng e bec ause he asser ts that the juvenile court’s decision is contra

ry to the overw helming evidenc e. I n revie wing this sufficie ncy challeng e,

we view all of the evidenc e but do not view it in the light most favor able to the challeng ed finding

. See In re M.A.C. , 999 S.W .2d at 446; In the Matter of A.S. , 954 S.W .2d 855, 860 (Tex.App.--El Paso

A r t i c l e 6 2

. 3 5 2 d o e s n o t s p e c i f y w h a t s t a n d a r d w o u l d b e r e q u i r e d f o r e x e m p t i o n i f t h e j u v e n i l e i s u n s u c c e s s f u l 1
a t t h e t r e a t m e n t p r o g r a m . P r e s u m a b l y , A r t i c l e 6 2

. 3 5 2 ( a ) w o u l d g o v e r n t h e j u v e n i l e c o u r t ’ s d e c i s i o n o n r e g i s t r a t i o n .1997, no writ). Only if the finding is so contra ry to the overw helming weig ht of the evidenc e as to be clea rly wrong and unjust will we conclude that the evidenc e is fac tually insufficient. In re M.A.C. , 999 S.W .2d at 446; In re A.S. , 954 S.W .2d at 860. Appellant attended a sex offe nder residential trea tment prog ram at the Peg asus Schools from Septemb er 1 7 , 2008 until September 8, 2009. The State introduced into evidenc e the discharg e summary , dated September 8, 2009, prepa red by J ohn J oslin, a thera

pist at Peg asus. J oslin rec ounted that Appellant had previously been in outpatient trea tment for fourtee n months but was discharg ed

unsucce ssfully beca

use he made minimal prog ress. At Peg asus, Appellant had considera ble behavior al difficulty in the ear ly phases of trea tment and avoided thera py by minimi zing the offe nse and blaming the victim, a nd by the use of ang er, intimi dation, artificia l c onfusion and ag g ression. He made s teady improvement over time and eventually held hi mself accountable for th e offe nse. He also beca

me able to show more empathy for others but he would need to continue to work on this during outpatient thera

py following discharg e from Peg asus. J oslin identified cer tain behavior s that demonstrated a risk of re- offe nse: (1) continued u s e o f cognitive distortions (thinking err ors he continued to use are victim stance , instant g ratifica tion, and ang er) ; (2) unwillingness to control his impulses (sexual and criminal); (3) the number of sexual assault victims (appr ox imately eleve n); (4) the number of male victims (appr ox imately two); (5) duration of sexual history (over one y ear ); and school behavior problems. Despite these risks, Appellant had shown a reduc tion of “cr iminal pride thinking err ors” and behavior and he did not require st aff intervention for neg ative or ag g ressive behavior

. Appellant had also demonstrated an ability to apply the thera py conce pts he had lear

ned
to control his deviant impulses. J oslin administered the J uvenile Sex Offe nder Assessment Protocol I I (J-S OAP-II ) shortl y befor e Appellant’s discharg e from the progra m. J -SOAP-I I is a sy stematic revie w and assessment of i t em s t h at may ref lect an incre ased risk to re- offe nd. On the sexdrive/pre occupa tion scale , Appellant score d 9 out of a possible 16 risk points sug g esting a high risk. He score d 5 out of a possible 16 points on the impulsi ve/antisocial behavior scale indicating a low risk for g ener al delinquenc y . Wit h respe ct to the interve ntion scale, Appe llant scored 5 out of 14 risk points indicating that Ap p el lant had benef itted from trea tment. Appellant’s score on the intervention fac tor reduc es the fi rs t t wo risk fac tors. Given Appellant’s overa ll risk score of 34 perc ent, J oslin conclude d that he was a low risk to re- offe nd. Howeve r, J oslin rec ommended that the J -SOAP-I I results wer e only part of a compre hensive risk assessment and should be ree valuated three months afte r being transitioned back into the communi ty

. J oslin additionally rec ommended that Appellant continue with sex offender thera py with a license d sex offe nder treatment provider following discharg e. Due to Appellant’s prog ress in trea tment, J oslin rec ommended that Appellant
not be require d to reg ister as a sex offe nder, an d Appellant’s trea tment team at Peg asus

rec ommended that the court defe r sex offe nder reg istration for six months in order to determine compliance with probation. Appellant’s afte rca

re probation office r, J ennife r Parada , testified at the reg istration hear ing and her revie w of probation report was admitt ed int o evidenc e. Parada char acte rized App el l an t ’s d i s ch arge from Peg asus as succe ssful. As a result of the poly g raph examiner’s repor t, Parada beca me awa re that Appellant had b ee n watching pornog raphic materia ls and he had asked high school g irls to send him photogr aphs of themselves. At a home visit, Parada confr onted Appellant with these violations of his safety plan and he took full ownership of them. Par ada r ecommende d that Appellant reg ister as a sex offe nder but she admitted that was the depar tment’s stance in ever

y

case . Marg ie Desrosie rs is a licensed sex offe nder trea tment provider who trea ted Appellant b e f

ore he went to Peg asus and during his afte rca re prog ram. Appellant did not prog ress well during initialsex offe nder trea tment with Desrosie rs and he was subsequently place d at Peg asus. Desrosie rs had

revie wed the discharg e summary from Peg asus and did not ag ree that Appellant had done well in that p rogra m or that he should have been succe ssfully discharg ed. Desrosie rs prepa red a discharg e summary dated November 23, 2009 indicating that Appellant had g ained a fu l l awa rene ss of his inappropria te sexual behavior s an d h ow he repe ated his offe nse cy cle, and further , he understood how his deviant sexual fanta sies can lead him to re- offe nd if he did not interrupt them immediately

. Desrosie rs also expressed that Appellant had not alway s adher ed to his rela pse preve ntion plans. For example, Appellant was not for thcoming a

bout his tar diness and truanc y at his hig h school and he

was unwilling to quit wea ring g ang colors beca

use he li k ed t o d re s s that way . The discharg e summary also repor

ted that Appellant disclosed all of his vic tims while at Peg asus, but D esrosier s

rec ommended that he take a Maintenanc e Poly g raph to deter mine if he had committed any new illega l sexual acts or had unsupervised contac t with a child in violation of the court order

. Desrosie rs noted that Appellant disclosed in July 2009 that he had e ng ag ed in ina ppropriate sexual behaviors with a total of twenty -nine persons, both male and fema le, and of those, fourtee n wer e family members. One of the victims was a one-y ear -old. Desrosie rs conclude d that Appellant’s prog nosis

was poor unless he adher ed to h is rela pse preve ntion plan which included impulse control, identify ing and corr ecting cog nitive distortions, avoiding neg ative peer s and fa mily members, and holdin g h i m s el f acc ountable for his actions. Desrosie rs abstained from making a reg istration

rec ommendation until after the polyg raph ha d been a dminist ere d. The poly g raph e x aminer inter viewed A ppellant prior to the e x am on Novembe r 23, 2009. Appellant admitted that he had used marihuana on at least seven o cc as i o n s since his J uly 2009 poly g raph exam and had cut painkillers into littl e piece s and then inhaled them throug h his nose. He had also drank beer and what he believed to be whisky or a few occa sions. Appellant had sexualfanta sies with children on the aver ag e of three times per wee k and he had unsupervised contac t with

seven male and nine fema le children, mostly family m em b er s . Al l of these children wer e Appellant’s former victims. Appellant al s o t o ld the pol y g raph ex aminer that he has viewed adult pornog raphy both at school and home and he has solicited high school g i rl s t o send him “sexy pictures” of themselves. Finally , Appellant informed the examiner he had eng ag ed in sexual contac t with a six -y ear -old g irl. I t is unclea r from the repor

t whether this is a new victim or a victim which Appellant faile d t o disclose during his J uly 2009 examination. After revie wing the poly g raph examiner’s re port, Desr osiers re commended tha t Appellant be r equire d to reg ister. The juvenile court had befor e it conflicting evidenc e and conflicting rec ommendations as to reg istration, but that d o es n o t automatically rende r the evidenc e fac tually sufficie nt. There is

cre dible evidenc e supporting an implied finding that Appellant succe ssfully completed trea tment at Peg asus. Turning to the interests of the public element, the evidenc e showed that Appellant had eng ag ed in ina

ppropriate sexual be havior with thirty people, both male a

nd fema le, rang ing in a g e from one y ear of ag e to sevente en y ear s of ag e. Appellant continued to have sexual fanta sies about children and he enga g ed in unsupervised contact with sever al former vi ctims even after trea tment at Peg asus and in violation of the court’s order

. Appellant’s behavior indicates an unwillingness to control his impulses wh i ch both J oslin and Desrosie rs identified as a risk fac tor for rela pse. The evidenc e is fac tually sufficie nt to support an implied finding that the interests of the public require reg istration. We conclude that t h e j u venile court did not abuse its discretion by enter ing the

re gi s t ra t i on order

. Appellant’s sole issue is overr uled and the judgme nt of the juvenile court i s aff irmed.

J une 1, 2011ANN CRAWFORD McCL URE, J ustice

Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.