NUMBER 13-10-00189-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

IN THE MATTER OF P.D.M., A JUVENILE

 

On appeal from the Juvenile Court

of Polk County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides

Memorandum Opinion by Justice Benavides

Appellant, P.D.M., was convicted by a juvenile court of delinquent conduct for 

murder and reckless injury to a child for which he was sentenced to twenty-four years’ 

and twenty years’ commitment with the Texas Youth Commission (―TYC‖), respectively. 

Each sentence carried the possibility of transfer to the Texas Department of Criminal 

Justice—Institutional Division (―TDCJ‖) upon P.D.M. reaching the age of majority. 
2

Shortly before his twenty-first birthday, and upon the recommendation of TYC, P.D.M. 

was ordered to be transferred to TDCJ to serve the remainder of his sentences. By one 

issue, P.D.M contends that the trial court abused its discretion in ordering that he be 

transferred to TDCJ as opposed to being ordered to adult parole. We affirm.

I. BACKGROUND1

In opening arguments in the hearing on the order to transfer P.D.M. to TDCJ, 

without objection, the State ―reminded‖ the court of the circumstances of the underlying 

offenses for which P.D.M. was being confined:

[On] January 1st of 2005, [P.D.M.] was playing with a weapon. He 

was dry-firing an automatic pistol at three other children, all under the age 

of 14. At some point, he re-engaged the clip in that weapon, pulled the 

slide back to engage a bullet, and then pulled the trigger, shooting his 

sister in the face.

He then took the other two children home, in an attempt to help 

cover up the crime that he had committed, then tampered with evidence, 

moved the body, covered up the blood, lied to his mother about what had 

occurred, and continued with that lie for quite a period of time before the 

Sheriff’s Department was finally able to determine that it was not an 

accident, and that he had, in fact, murdered his sister.

At the time of the shooting, P.D.M. was fifteen years old. The jury specifically found that 

P.D.M. was not guilty of delinquent conduct for ―intentionally or knowingly‖ shooting his 

sister, but rather, that he was guilty of delinquent conduct because he caused her death 

while committing or attempting to commit the felony of endangering a child and because 

he recklessly caused serious bodily injury to his sister by shooting her with a firearm. 

 

1

This case is before this Court on transfer from the Court of Appeals for the Ninth Judicial District in 

Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN.

§ 73.001 (West 2005).
3

P.D.M. appealed his sentences to the Court of Appeals for the Ninth Judicial District, and 

the court affirmed the juvenile court’s judgment. See In re P.D.M., No. 09-06-246-CV, 

2008 Tex. App. LEXIS 897, at *9 (Tex. App.–Beaumont February 7, 2008, no. pet.) 

(mem. op.).

At the transfer hearing, the State called two witnesses—Dr. Steven Brownlow2

and Leonard Cucolo.3 Each of these witnesses was, at the time of the hearing, 

employed by TYC and each testified that it was the recommendation of TYC that P.D.M. 

be transferred to TDCJ. Specifically, Dr. Brownlow testified as follows:

Q: [Counsel for the State] Okay. You, I guess along with your 

supervisor, Dr. Claridge, were ultimately asked to give a 

recommendation to TYC[,] and indirectly to this Court, as to whether 

or not [P.D.M.] should be paroled when he turns 21[,] here in April, 

back to our community or transferred in to the adult correctional 

TDCJ facility, what was your opinion?

A: [Dr. Brownlow] Our opinion was that he needed to be transferred.

Q: What was the principal basis for that finding?

A: . . . [T]he research evidence on the Capital Offender Program has 

shown that the people who have completed it successfully[] do well. 

They have much lower recidivism rates than people who don’t go 

through the program.

 

2

The testimony indicated that Dr. Brownlow received a doctoral degree in clinical psychology from 

Walding University and a master’s degree in educational psychology from the University of Texas at Austin. 

Additionally, the testimony indicated that he had worked primarily in the field of treatment of adolescent 

males for ―the better part‖ of thirty years and had previously worked with the San Antonio State Hospital. 

3

The record showed that Cucolo was the Court Liaison for TYC and that his responsibilities 

included providing information to the trial court about offenders who were being transferred and providing 

the court with TYC’s recommendations. Cucolo testified that he had worked with TYC since 1988 as a 

Program Therapist in the Sex Offender Treatment Program, a Program Administrator, a Victim Services 

Coordinator, and a Court Liaison. He received a bachelor’s degree from Southwest Texas State University 

and a master’s degree in social work from Our Lady of the Lake University in San Antonio. 
4

On the other hand, people who fail the program, that’s 

not—that’s not true. And the biggest reason is not that they [] could 

stand up and say what they’ve done and sort of act it out and so 

forth, but that they’ve come to accept responsibility for what they’ve 

done. And by accepting responsibility for what they’ve done, 

they’re then able to formulate plans. They have some self-insight, 

some self-understanding, and they’re then able to formulate some 

plans that would allow them to realize, oh, I don’t want this to 

happen again, I better do these things. I better not put myself into 

these kinds of situations. I better not do this, I better do this 

instead.

If you didn’t do anything, if you steadfastly maintain that you 

didn’t do anything, and the only reason that you got—the only 

reason that you got 24 years is because the Jury understood it was 

an accident, which he told me, then it’s very difficult to see that 

—that he’s able to make any kind of reasonable plans that are going 

to keep him safe in the future.

. . . .

Q: But when you look at the overall big picture, I guess I’m gleaning 

from your testimony, you have concern as to whether he made—he 

has the potential, at least, to violently re-offend—

A: Yes, I tend to believe that in this case, treatment is important. I 

tend to think that if we’re—if—to the extent that TYC is a juvenile 

agency that’s charged with rehabilitating criminals, and they refuse 

to go through rehabilitative therapy, then it’s hard to say that I 

believe that they have rehabilitated themselves.

The testimony further indicated that P.D.M. refused to participate in any therapy 

programs for the first two years of his confinement at TYC. However, once his appeal 

was finally denied, P.D.M. eventually agreed, ―kicking and screaming,‖ to participate in 

the Capital Offenders Program. He was deemed to have failed the program. 

According to the testimony, P.D.M. never took responsibility for his involvement in his 
5

sister’s death. At one point during the program, P.D.M. did admit that ―his finger must 

have touched the trigger,‖ but just three days later, he was again denying any 

responsibility for the shooting. 

Testimony from the witnesses also indicated that, while at TYC, P.D.M. had 

taught himself to read and write and had earned a high-school diploma; that he had 

assisted a TYC teacher in instructing other students; that he completed trade courses in 

construction and cabinetry; that, though gangs were present at TYC, he was not a 

member of any gang; and that he had an exemplary behavioral record with not one 

single ―write-up‖ in forty-five months of confinement. Additionally, without objection, 

counsel for P.D.M. introduced two handwritten notes from P.D.M. into evidence in which 

P.D.M stated, in pertinent part ―I do addmet [sic] that I took my sister’s life by shooting 

her[,] but it was not on purpes [sic] and I think about it from the time I wake up to the time 

I go to bed. I know that it’s my fault for the death of my sister.‖

II. STANDARD OF REVIEW

We review the juvenile court’s decision to transfer a juvenile from TYC to TDCJ 

for an abuse of discretion. In re F.D., 245 S.W.3d 110, 113 (Tex. App.–Dallas 2008, no 

pet.); In re C.L., 874 S.W.2d 880, 886 (Tex. App.–Austin 1994, no writ). In deciding 

whether the juvenile court abused its discretion, we review the entire record to determine 

if the court acted without reference to any guiding rules or principles. In re J.J., 276 

S.W.3d 171, 178 (Tex. App.–Austin 2008, pet. denied); In re J.L.C., 160 S.W.3d 312, 

313 (Tex. App.–Dallas 2005, no pet.). If ―some evidence‖ exists to support the juvenile 
6

court's decision, there is no abuse of discretion. In re F.D., 245 S.W.3d at 113; In re 

D.L., 198 S.W.3d 228, 229 (Tex. App.–San Antonio 2006, pet. denied); In re R.G., 994 

S.W.2d 309, 312 (Tex. App.–Houston [1st Dist.] 1999, pet. denied). This Court will not 

substitute its own judgment for that of the juvenile court, nor will we reverse the juvenile 

court’s ruling merely because we disagree with its decision. In re C.L., 874 S.W.2d at 

886. 

Once TYC refers a person to the juvenile court for a transfer, the juvenile court is 

required to hold a hearing to determine whether to transfer the person to the custody of 

TDCJ for the completion of the person's sentence. See TEX. FAM. CODE ANN.

§ 54.11(a), (i) (West Supp. 2010). In making this determination, the juvenile court may 

consider a number of factors, including:

the experiences and character of the person before and after commitment 

to the youth commission, the nature of the penal offense that the person 

was found to have committed and the manner in which the offense was 

committed, the abilities of the person to contribute to society, the protection 

of the victim of the offense or any member of the victim’s family, the 

recommendations of the youth commission and prosecuting attorney, the 

best interests of the person, and any other factor relevant to the issue to be 

decided.

Id. § 54.11(k) (West Supp. 2010); see In re J.J., 276 S.W.3d at 178. ―The juvenile court 

is not required to consider all of the factors, and the court is expressly allowed to 

consider unlisted but relevant factors.‖ In re J.J., 276 S.W.3d at 178; see In re C.L., 874 

S.W.2d at 886. Evidence of each factor listed is not required, and the juvenile court is 

free, within its discretion, to assign different weights to the factors it considers. In re 

J.J., 276 S.W.3d at 178. 
7

III. ANALYSIS

In P.D.M’s only issue, he challenges the juvenile court’s decision to transfer him to 

TDCJ, arguing, specifically, that the court abused its discretion because the evidence at 

the hearing ―strongly supported the release of P.D.M. to adult parole,‖ and the evidence 

―all but established that the community would be safe were P.D.M released on adult 

parole.‖ We disagree.

The trial court heard evidence about the violent nature of the underlying offense 

and that before entering TYC, P.D.M. was prone to bullying others and had, on at least 

one other occasion, ―dry-fired‖ a shotgun at other children. The trial court also heard 

testimony that P.D.M. had not accepted full responsibility for his role in his sister’s death, 

and this often indicated a higher recidivism rate in violent offenders. See In re J.J., 276 

S.W.3d at 180 (noting that ―there was evidence that the offenses for which [the 

defendant] had been adjudicated delinquent were violent crimes involving deadly 

weapons and that [he] refused to accept full responsibility for the offenses he had 

committed‖ and concluding that this was sufficient to justify the trial court’s transfer of the 

defendant to TDCJ).

We recognize that there was some evidence tending to indicate that P.D.M. had 

made significant progress while at TYC. However, this does not negate the factors in 

the family code for which the trial court heard evidence in support of transfer to TDCJ. 

See id. at 178 (explaining that the juvenile court is within its discretion in assigning 

whatever weight it deems appropriate to the factors listed in the family code). Similarly, 
8

the fact that P.D.M. seemed to take responsibility for his sister’s death in a note written 

during the hearing does not necessarily negate Dr. Brownlow’s testimony that P.D.M. 

had not truly accepted responsibility because the court is the sole judge of the credibility

of the witnesses and was free to disbelieve P.D.M.’s statement. See In re A.M., 333 

S.W.3d 411, 417 (Tex. App.–Eastland 2011, pet. filed). Additionally, the trial court 

heard testimony that TYC ―strongly‖ recommended that P.D.M. be transferred to TDCJ. 

See TEX. FAM. CODE ANN. § 54.11(k) (allowing the trial court to consider ―the 

recommendations of the youth commission and prosecuting attorney‖). 

Because there was some evidence on which the trial court could have properly 

based its ruling, we cannot say the trial court acted without reference to guiding rules and 

principles in its determination that P.D.M. be transferred to TDCJ. See In re J.J., 276 

S.W.3d at 178; In re J.L.C., 160 S.W.3d at 313; In re F.D., 245 S.W.3d at 113; In re D.L., 

198 S.W.3d at 229; In re R.G., 994 S.W.2d at 312. Accordingly, we find no abuse of 

discretion, and P.D.M.’s issue on appeal is overruled.

IV. CONCLUSION

Having overruled P.D.M.’s only issue on appeal, we affirm the trial court’s order 

transferring P.D.M. to TDCJ.

________________________

GINA M. BENAVIDES,

Justice

Delivered and filed the

16th day of June, 2011.