Juvenile law | In the Matter of RAN (Tex.App.- Austin, July 3, 2008)(drugs)

R.A.N., a juvenile, was adjudicated delinquent for the offense of possession of marihuana and was placed on probation in his home for twelve months. See Tex. Fam. Code Ann. §§ 54.03, .04 (West Supp. 2007). Three months later, the trial court signed an order modifying R.A.N.’s probation, finding that he had violated the terms of his probation, and ordering him placed at the Travis County Leadership Academy for eighteen months. See id. § 54.05 (West Supp. 2007).

In the Matter of R. A. N. (Tex.App.- Austin July 3, 2008)
AFFIRMED: (Before Chief Justice Law, Justices Puryear and Henson)

Appeal from 98th District Court of Travis County

R.A.N. appeals, complaining that the trial court should have committed him to a residential drug treatment center instead of the Leadership Academy. We affirm the trial court’s modification order.
When R.A.N. was adjudicated delinquent for the subject offense, he had already been placed on probation four times for possession of marihuana in a drug-free zone, violation of court orders, assault, and theft. Although R.A.N. was eligible for commitment to the Texas Youth Commission, the probation department recommended that he be placed on probation and required to participate in outpatient drug treatment. The trial court agreed, and R.A.N. was placed on probation at home. About three months later, the State filed its motion to modify R.A.N.’s disposition, alleging that he had skipped and gotten suspended from school, tested positive for THC, failed to report to his probation officer, and missed several drug treatment appointments. The department recommended that R.A.N. be committed to TYC custody because he needed “a secure structured environment” to help him develop “behavior modification skills.”
At the hearing on the State’s motion, the State dropped its allegations related to skipping school, positive drug tests, and missing drug treatment, and R.A.N. pled true to the remaining allegations. R.A.N.’s probation officer testified that when R.A.N. was adjudicated delinquent three months earlier, he had been accepted by and the department recommended that he be assigned to the Leadership Academy. Instead of sending him to the Leadership Academy, however, the trial court on its “own motion” placed him on probation. The officer testified that R.A.N. and his family had not cooperated with his counselors or the department and that his mother had said “she does not feel that they need counseling.” The officer was asked why R.A.N. was not staffed for “more restrictive drug treatment,” and she replied, “He was staffed for Leadership, whatever level to upgrade the level of substance abuse, Leadership.” The officer said that R.A.N.’s family wanted him to get residential drug treatment, but that they were “open to” both drug treatment and “Leadership if it turns out that his problem is more of a behavioral issue.” Although the department recommended TYC commitment, the Leadership Academy had agreed to reconsider R.A.N. R.A.N.’s father testified and said that he wanted R.A.N. to receive drug treatment and that he “[w]ould . . . like to see [R.A.N.] staffed for inpatient drug treatment or Leadership, something along that line.” He testified, “We don’t have behavioral problems with [R.A.N.] . . . The main problem is . . . the drugs.” He denied that he and his family were uncooperative.

At the conclusion of the hearing, the trial court said,

We have two programs that are appropriate for [R.A.N.] One is the Leadership program and one is the CHOICES program. . . . So I don’t really want to put [R.A.N.] in the Texas Youth Commission since he just barely turned 15. I cannot in good conscious [sic] return him home because he’s been unsuccessful at home. He will not follow the Court’s rules, parent’s rules, he won’t stay drug free permanently, all that sort of stuff. So I’m going to have our residential program interview him and his folks and decide which one is more appropriate, make a recommendation whether it should be the CHOICES program or whether it should be a behavioral program rather than a drug treatment program, figure out which one seems to be more appropriate.


The residential services representative told the court that he had already interviewed R.A.N. and that his department believed “that regular Leadership is more appropriate for [R.A.N.]” In closing statements, R.A.N.’s attorney said that his family believed drug treatment was more appropriate but that they were “willing to cooperate with Leadership if it turns out that that is more appropriate,” and asked the court to “make sure that Leadership is a more appropriate program for him.” The State asked the court to send R.A.N. to the Leadership Academy. The court noted that it was “hard to figure out quite honestly whether his is a drug problem or . . . a behavior problem and just one of his misbehaviors happens to be that every now and then he will use drugs.” The court acknowledged that the residential services department believed the Leadership Academy was “the best fit” and would deal “with his issues better than the other programs.” The court then held that it was going to follow the residential services department’s recommendation and placed R.A.N. on probation in the Leadership Academy for eighteen months.
R.A.N. asserts that the evidence showed that he “[c]learly needed drug treatment and thus commitment to the Leadership Academy . . . was not in his best interest.” He argues that the trial court’s decision “in not giving appellant the drug treatment which he needed goes against” the juvenile justice system’s goal of rehabilitation and was an abuse of discretion. We disagree.
A trial court has broad discretion to decide the suitable modification of disposition for a juvenile who has been adjudicated delinquent. In re E.D., 127 S.W.3d 860, 862-63 (Tex. App.—Austin 2004, no pet.). We will not disturb the court’s determinations in a modification proceeding unless the record reflects a clear abuse of discretion, which occurs if the court acts arbitrarily, unreasonably, or without reference to guiding rules and principles. Id. at 863.
When R.A.N. was adjudicated for the subject offense, the probation department recommended that he be placed at the Leadership Academy. The residential services department interviewed him and recommended the Leadership Academy instead of drug treatment. The trial court noted its concerns about whether R.A.N.’s problems were behavioral, with drug abuse being one of his misbehaviors of choice, or related to drug addiction and then opted to follow the experts’ recommendation that he be sent to the Leadership Academy. Based on the record before us, we cannot hold that this decision was an abuse of the trial court’s broad discretion in deciding when and how to modify a juvenile’s disposition. See id. We affirm the trial court’s modification order.

__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: July 3, 2008

Juvenile Cases | In the Matter of S.C. (Tex.App.- Austin, July 3, 2008) (capital murder)

In March 2002, the trial court found that S.C., who was sixteen at the time, had committed the offense of capital murder when he shot and killed Jesse Rangel, Jr., during an aggravated robbery, adjudicated him delinquent, and committed him to the custody of the Texas Youth Commission for a determinate forty-year sentence.

AFFIRMED: (Before Justices Patterson, Puryear and Pemberton)

In the Matter of S. C.--Appeal from 98th District Court of Travis County

In February 2006, TYC asked to have S.C. transferred from TYC custody to the Texas Department of Criminal Justice to serve the remainder of his sentence. On April 6, 2006, the trial court held a hearing on TYC’s transfer request (the “transfer/release hearing”), see Tex. Fam. Code Ann. § 54.11 (West Supp. 2007) (on receipt of TYC request for transfer to TDCJ, court must hold hearing and decide whether to transfer juvenile or release juvenile under supervision), and ordered S.C. transferred to TDCJ custody for the completion of his sentence. S.C. appeals, arguing that the trial court erred in admitting into evidence a recent psychological evaluation of S.C. on which TYC relied in part for its transfer request. We affirm the trial court’s transfer order.
At the transfer/release hearing, Leonard Cucolo, court liaison for TYC, provided copies of TYC’s business records related to S.C. When TYC sought to admit the records, S.C. objected that the records included pre-sentence reports from the Austin Police Department. The trial court stated that it was admitting the exhibits but would not consider the police reports. S.C. then immediately objected “with regard to the psychological evaluation” performed in October 2005 by associate psychologist Jackie Daiss, complaining that S.C. was not formally warned of his Miranda
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rights. The court noted that S.C. had already been sentenced and then overruled S.C.’s objection when his attorney could produce no case law to support his objection. On appeal, S.C. complains that the trial court erred in admitting Daiss’s report because the lack of Miranda warnings violated his constitutional rights against self-incrimination.
TYC initially contends that S.C. waived any objection to Daiss’s report because his objection was untimely, made immediately after the trial court admitted the records with the caveat that it would not consider the pre-sentencing police reports, and not sufficiently specific because S.C. did not specify exactly where in the exhibits the objectionable report was located.
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We disagree and hold that S.C., by raising his objection immediately after his objection to the police reports and by specifying that it was Daiss’s report to which he objected, sufficiently preserved his complaints related to his Fifth Amendment rights under the federal constitution.
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After objecting to the admission of Daiss’s report, S.C. called her as a witness. Daiss essentially testified to the same information that was included in her report. She said that S.C. had made good progress until he was transferred to a different unit, that he claimed he shot the victim in self-defense, and that he showed a lack of empathy and remorse for the offense. She believed S.C. was dishonest in taking a psychological test and recommended that he be transferred to TDCJ. Daiss’s report recites the same opinions and states that the evaluation was requested to aid TYC in “determining whether [S.C.] should be returned to court for a possible waiver of his minimum period of confinement or be transferred to” TDCJ. At the beginning of the assessment, S.C. “was informed that the results of psychological testing and clinical interview would not be confidential and would be used to assist” TYC in making a recommendation in S.C.’s case. Daiss explained to S.C. “that the evaluation would become part of his permanent record available to all decision-making authorities,” and S.C. said he understood the purpose of the assessment and agreed to participate.
S.C. also called as witnesses his TYC caseworker, who testified that he had not made sufficient progress with his treatment and seemed to have developed a self-defeating attitude; and five juvenile corrections officers who supervised him and testified that he had been cooperative, polite, and respectful and was not disruptive. At the conclusion of the hearing, the trial court said it was taking as true S.C.’s claim of self-defense and stated, [W]hether you feel like you had some justification for this murder or not, there has to be an emotional reaction to what you saw and experienced and what happened. And I don’t see any. I haven’t seen any today. I don’t see any in the records. I don’t see any ability to have any feeling for human life. That makes you, sir, a dangerous person. . . . But I don’t care how you play it out, whether you killed this man in cold blood, or want to believe, and it’s true in your heart, that it was self-defense, you better find some ability to connect with your conscience. You better find some reason to change.
We review a trial court’s order transferring a juvenile to TDCJ custody for an abuse of discretion. In re F.D., 245 S.W.3d 110, 113 (Tex. App.—Dallas 2008, no pet.); In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006, pet. denied); In re C.L., Jr., 874 S.W.2d 880, 886 (Tex. App.—Austin 1994, no writ).
S.C. complains that the admission of Daiss’s report during the transfer/release hearing violated his Fifth Amendment privilege against self-incrimination. Assuming that S.C. did not waive any error by calling Daiss to testify about the conclusions she reached and included in her report, see Leday v. State, 983 S.W.2d 713, 717-18 (Tex. Crim. App. 1998) (“overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling”), a transfer/release hearing is not a trial—a juvenile’s guilt or innocence has already been determined and a sentence imposed. In re M.M., No. 03-06-00396-CV, 2008 Tex. App. LEXIS 981, at *9-10 (Tex. App.—Austin Feb. 6, 2008, pet. denied) (mem. op.); In re D.L., 198 S.W.3d at 230; In re C.L., Jr., 874 S.W.2d at 884-85. The conduct for which S.C. is being punished was already considered by the trial court, and S.C. was sentenced to a term of forty years. In this transfer/release hearing, the trial court was simply considering whether to continue S.C.’s confinement or allow his supervised release. Thus, in this “second chance hearing,” “due process requirements are not as stringent as those in an actual trial.” In re J.M.O., 980 S.W.2d 811, 813 (Tex. App.—San Antonio 1998, pet. denied); see In re D.L., 198 S.W.3d at 230; In re D.S., 921 S.W.2d 383, 387 (Tex. App.—Corpus Christi 1996, writ dism’d w.o.j.).
Section 54.11, which governs transfer/release hearings, provides that a trial court considering whether to release a juvenile under supervision or transfer him to TDCJ custody may consider “written reports from probation officers, professional court employees, professional consultants or employees of” TYC, provided that the juvenile is allowed “access to all written matter to be considered by the court” and “previous examination of all reports on and evaluations and examinations of or relating to him that may be used in the hearing.” Tex. Fam. Code Ann. § 54.11(d), (e).
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As we recently said in In re M.M.:
Thus, because a transfer hearing is not a stage of a criminal prosecution, the hearing does not require the same stringent requirements as a trial in which a person’s guilt is determined, and the statute expressly provides for the consideration of the [psychological evaluation conducted for the purposes of the transfer hearing], we hold that the trial court did not err in admitting the evaluation.
2008 Tex. App. LEXIS 981, at *11. S.C. has presented us with no argument or authority explaining why we should not follow our earlier decision. Further, in In re F.D., our sister court held that the trial court’s consideration of a psychological exam conducted for a transfer/release hearing when the psychologist did not appear for the hearing did not violate the juvenile’s Sixth Amendment rights, noting that the transfer hearing “is dispositional rather than adjudicative in nature.” 245 S.W.3d at 113-14.
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We hold that the trial court did not abuse its discretion in admitting Daiss’s report into evidence during S.C.’s transfer/release hearing. We overrule S.C.’s sole issue on appeal and affirm the trial court’s transfer order.

__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Pemberton
Affirmed
Filed: July 3, 2008

Juvenile Cases | In the Matter of R.S. (Tex.App.- Austin 2008)

R.S., a juvenile, was adjudicated delinquent for the offense of possession of a controlled substance. See Tex. Fam. Code Ann. §§ 54.03, .04 (West Supp. 2007); Tex. Health & Safety Code Ann. § 481.117 (West 2003). Following a disposition hearing, the trial court ordered R.S. committed to the custody of the Texas Youth Commission (TYC). R.S. appeals, asserting that in reaching its disposition decision, the trial court refused to consider all possible disposition options and instead relied on admonitions given to R.S. by another judge in an earlier delinquency proceeding. We affirm the trial court’s disposition order.

In the Matter of R. S. (Tex.App.- Austin, July 3, 2008)( )(juvenile case, drugs) (Before Chief Justice Law, Justices Puryear and Henson)

In the Matter of R. S.--Appeal from 98th District Court of Travis County

M E M O R A N D U M O P I N I O N

R.S., a juvenile, was adjudicated delinquent for the offense of possession of a controlled substance. See Tex. Fam. Code Ann. §§ 54.03, .04 (West Supp. 2007); Tex. Health & Safety Code Ann. § 481.117 (West 2003). Following a disposition hearing, the trial court ordered R.S. committed to the custody of the Texas Youth Commission (TYC). R.S. appeals, asserting that in reaching its disposition decision, the trial court refused to consider all possible disposition options and instead relied on admonitions given to R.S. by another judge in an earlier delinquency proceeding. We affirm the trial court’s disposition order.

A trial court may not commit a juvenile to TYC unless it finds that commitment is in the child’s best interest, all reasonable efforts were taken to avoid the need to remove the child from his home, and the child could not get the care, support, and supervision he needs to meet probation conditions in his home. Tex. Fam. Code Ann. § 54.04(i)(1); In re C.C., 13 S.W.3d 854, 858 (Tex. App.—Austin 2000, no pet.). A juvenile court has broad discretion in determining the suitable disposition of a juvenile who has engaged in delinquent conduct. In re A.I., 82 S.W.3d 377, 379 (Tex. App.—Austin 2002, pet. denied). In reviewing the court’s decision on disposition, we ask whether the court acted in an unreasonable or arbitrary manner. Id. at 379-80. A trial court does not abuse its discretion if some substantive and probative evidence supports its decision. In re C.J.H., 79 S.W.3d 698, 702 (Tex. App.—Fort Worth 2002, no pet.). Legal and factual sufficiency may be relevant in assessing the trial court’s exercise of its discretion, and we review evidentiary sufficiency under the standards applied in criminal cases. Id. at 702-04; see In re C.C., 13 S.W.3d at 858-59.
R.S. was sixteen in May 2006, when she committed the offense of possession of hydrocodone within 1000 feet of Westlake High School. As part of a plea agreement, the State abandoned the school-zone allegation, and R.S. pled true to the State’s allegations. After adjudicating R.S. delinquent, the trial court proceeded to disposition. The court took judicial notice of R.S.’s file, which reflects that she had been in trouble with the law since 2003 and had been referred to the probation department several times for theft and violation of court orders. She had been placed on probation twice for assault and criminal trespass, and at the time of this offense, was on probation for assault. The probation department’s report stated that child protective services had received three referrals on R.S.’s parents for neglectful supervision, her mother was arrested for assaulting R.S., and her two brothers have had legal and drug troubles.
According to the department’s report, R.S. had a history of behavior problems at school and skipping classes and she had tested positive for drugs at least once. From December 2005 to January 2006, R.S. “had a total positive turn around,” reporting to her probation officer as required, completing community service hours and required classes, and testing negative for drugs. In late January, however, she again tested positive for drugs and got into a fight with her mother. In late February, R.S.’s mother was arrested for assaulting R.S. Because R.S.’s father was in residential drug treatment at the time, R.S. was sent to live with her grandparents in Lampasas. During her time in Lampasas, R.S. “did exceptionally well.” She decided to return to her parents, however, against the advice of her grandparents and the probation department. She was warned by another trial court in an earlier proceeding that “if her positive progress made a change for the worse, then she would be sent to TYC.” R.S. “stated she would do well at home,” and the trial court allowed her to return to Austin. Things seemed to be going well until she was taken into custody less than one month later, returning to her campus in possession of five hydrocodone pills after having skipped classes without permission. The department concluded that R.S. was not an appropriate candidate for ISP staffing because of her “chaotic home environment,” her history of non-compliance and “continuing to re-offend,” her parent’s lack of cooperation and “minimizing behaviors,” and R.S.’s need for a structured environment.
The court also heard testimony from Jarrett Boykin, R.S.’s probation officer. He testified that in April 2006, just one month earlier, R.S. “was doing great” and had been living with her grandparents in Lampasas since February. She returned to Austin to be with her parents on April 5, and about one month later, was taken into custody for the subject offense. Boykin testified that R.S. was passing all her classes and was trying to get a job. R.S.’s parents were in the process of getting a divorce, and her father was attending Alcoholics Anonymous meetings every day. Boykin was asked what programs the probation department would recommend for R.S. as an alternative to TYC commitment. He answered, “Currently I staffed her for ISP, which she was turned down for. So the only thing the Department is recommending right now currently is TYC.” Asked if there were any other alternatives, Boykin testified,
If the Judge so ordered it, I guess she would go to ISP. But right now, we haven’t looked at any other—all the other programs are unavailable. We may look into some kind of drug treatment. We could possibly go back and look at residential or IOP. She’s ineligible right now for Leadership or any kind of Visions program. So it doesn’t leave too many other options other than probably drug treatment.


Boykin said R.S. did “very well” in Lampasas and that the trial court was reluctant to allow her to return to Austin and cautioned her that if she returned to Austin and “messed up,” she would be sent to TYC. In closing, R.S.’s attorney asked for another chance, noting that R.S. was getting good grades, looking for work, and obeying curfew. The State asked the court to commit R.S. to TYC, arguing that she had already been given several chances and had left a good situation in Lampasas, having been warned that she would be sent to TYC if she got in more trouble, only to be caught with a controlled substance one month later. The court committed R.S. to TYC, saying, “Why in the world didn’t you stay in Lampasas—and that’s not a question to you—because what young woman wouldn’t want to return home, even though you were just blowing the doors off the place with how well you were doing there in that environment?”
When viewed in the light most favorable to the court’s findings, the evidence is sufficient to show that TYC commitment is in R.S.’s best interest, that the department made all reasonable efforts to avoid removing her from her home, and that she cannot receive in her home the support, care, and supervision she needs. See In re C.C., 13 S.W.3d at 858. The same is true when all the evidence is viewed in a neutral light. See id. at 859. Although R.S. improved her behavior markedly, less than one month after returning from Lampasas, she again skipped classes and was caught in possession of a controlled substance. She was cautioned about the track she was on, and her grandparents, another trial court, and the probation department all recommended that she stay in Lampasas, but she decided to return to Austin, promising to stay out of trouble. Very shortly after returning to Austin and her parents’ care, while on probation for an earlier offense, she was again taken into custody, this time for possession of hydrocodone. The probation department recommended TYC commitment, and her probation officer testified that due to R.S.’s history of criminal offenses and her family’s tumultuous circumstances, the department believed she needed the structure that TYC could provide and that the department did not have many options to offer her other than TYC commitment or drug treatment. There is no evidence that the trial court based its decision on the other court’s admonishments rather than considering the entire record before it, which included the department’s report and recommendations.
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We cannot hold that the trial court abused its discretion in determining that R.S. would be best served by being committed to TYC custody. See In re A.I., 82 S.W.3d at 379-80. We affirm the trial court’s order of disposition.

__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: July 3, 2008

Juvenile law | Transfer to the TDCJ for the completion of determinate sentence

Juvenile Court Procedure

During the time a person is committed to the TYC, the Commission may request the court to release the person to supervision or transfer the person to the TDCJ. See Tex. Fam. Code Ann. § 54.11(a). Section 54.11 provides that when a juvenile is given a determinate sentence, upon the TYC’s request to transfer the juvenile to the TDCJ, the trial court is required to hold a hearing. Id. At the conclusion of the hearing, the trial court may either order the return of the juvenile to the TYC or the transfer of the juvenile to the custody of the TDCJ for the completion of his sentence. Id. § 54.11(i). If the Commission requests that the person be released to adult parole, the trial court may return the person to the TYC with or without approval to release that person under supervision. Id. § 54.11(j). If the Commission requests that a person be transferred to the TDCJ, the trial court may return the person to the TYC or order that he be transferred to the TDCJ. Id. § 54.11(i).

In the Matter of T. G. No. (Tex.App. - Austin, June 19, 2008)( ) (Before Justices Patterson, Puryear and Henson)In the Matter of T. G.--Appeal from County Court at Law No. 1 of Bell County
Appeal from County Court at Law No. 1 of Bell County

In making a determination regarding transfer of a juvenile offender to the TDCJ, a trialcourt may consider: (1) the experiences and character of the person before and after commitmentto the TYC; (2) the nature of the penal offense and the manner in which it was committed; (3) theabilities of the person to contribute to society; (4) the protection of the victim or the victim’s family;(5) the recommendations of the TYC and the prosecuting attorney; (6) the best interests of theperson; and (7) any other factor relevant to the issue to be decided. See Tex. Fam. Code Ann.§ 54.11(k) (West Supp. 2007).

A child committed to the TYC on a determinate sentence must remain at the TYC for a minimum period of time before release or transfer. See Tex. Hum. Res. Code Ann. § 61.081 (West Supp. 2007); Former HR Code § 61.084. The minimum length of stay depends upon the seriousness of the offense for which the child was committed. See Tex. Hum. Res. Code Ann. § 61.081.

For those who were committed to the Commission under a determinate sentence, as T.G. was here, transfer was automatic on the person’s twenty-first birthday—now his nineteenth birthday with the amendment—if the person had not already been discharged or transferred. See SB 103, 2007 Tex. Gen. Laws at 449 (amending human resources code to provide for automatic transfer at age nineteen instead of twenty-one).

OPIONION

T.G., a juvenile, was adjudicated delinquent, given a determinate sentence, and remanded to the custody of the Texas Youth Commission (TYC or Commission). This is an appeal from a juvenile court order transferring T.G. from the TYC to the custody of the Institutional Division of the Texas Department of Criminal Justice (TDCJ). With the passage of Senate Bill 103, Act of May 25, 2007, 80th Leg., R.S., ch. 263, 2007 Tex. Gen. Laws 421 (effectiveJune 8, 2007) (hereafter “SB 103”). Because several provisions of the family code and the humanresources code have been amended, we cite to the current version of the statute, unless a particularamendment is relevant to the disposition of this appeal. effective June 8, 2007, which reduced the age of youth who are eligible for confinement at the TYC from twenty-one to nineteen years of age, the question presented is whether the juvenile court retained jurisdiction to hold a transfer hearing for a juvenile’s transfer to the TDCJ for confinement if the juvenile (i) had been held pursuant to a determinate sentence felony adjudication, (ii) had not completed a minimum length of stay, and (iii) had not yet reached twenty-one years of age but was nineteen years of age when the statute became effective. In two issues on appeal, T.G. urges that the juvenile court was without authority to hold a transfer hearing and, upon the effective date of the statute, the Commission had no discretion but to transfer him to the custody of the TDCJ to serve the remainder of his sentence on parole. Because the Texas Family Code provides for the juvenile court to retain jurisdiction over the juvenile for transfer or release “without regard to the age of the person,” see Tex. Fam. Code Ann. § 51.0411 (West 2002), we hold that the court had jurisdiction and further that it did not abuse its discretion in ordering the transfer of T.G. to the custody of the TDCJ to serve the remainder of his determinate sentence.

BACKGROUND

In 2005, the State filed an original determinate sentencing petition alleging that T.G. had engaged in delinquent conduct by committing aggravated sexual assault of a child.
See Tex. Penal Code Ann. § 22.021 (West Supp. 2007). T.G. pleaded true to the charge, and the juvenile court adjudicated him as being a child who had engaged in delinquent conduct. Following a disposition hearing, the court committed T.G. to the TYC for a twelve-year determinate sentence.

A determinate sentence is one in which the court specifies the term of commitment in theTYC with a possible transfer to the TDCJ. See generally Tex. Fam. Code Ann. § 54.04(d)(3)(West Supp. 2007) (allowing the court to specify the term of commitment based on the degree ofdelinquent conduct).

See Tex. Fam. Code Ann. §§ 53.045(a), 54.04(d)(3) (West Supp. 2007); Act of May 27, 1979, 66th Leg., R.S., ch. 842, 1979 Tex. Gen. Laws 2333, 2390, amended by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.19, 1997 Tex. Gen. Laws 327, 442 (hereafter “Former HR Code § 61.084”) (current version at Tex. Hum. Res. Code Ann. § 61.084 (West Supp. 2007)).

The parties stipulated to the facts relevant to this appeal. Having been born on May 3, 1988, T.G. turned nineteen years old on May 3, 2007, while still in the custody of the TYC. On July 2, 2007, the TYC requested the court to hold a transfer hearing. On July 10, the State filed a Motion for a Release and Transfer Hearing pursuant to section 61.079 of the Texas Human Resources Code

See Act of May 27, 1987, 70th Leg., R.S., ch. 385, § 17, 1987 Tex. Gen. Laws 1891, 1898,amended by Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 61, 1995 Tex. Gen. Laws 2517, 2572-73 (hereafter “Former HR Code § 61.079”) (current version at Tex. Hum. Res. Code Ann. § 61.079(West Supp. 2007)). and section 54.11(b) and (d) of the Texas Family Code

See Tex. Fam. Code Ann. § 54.11(b), (c) (West Supp. 2007).Close and the court granted the motion. At the conclusion of the transfer hearing held in August 2007, the court rendered an order with findings of fact and conclusions of law directing that T.G. be transferred to the TDCJ.

Findings of Fact and Conclusions of Law

The court’s findings of fact and conclusions of law included the following:

5.that at the time of T.Y.C.’s request for “transfer,” juvenile had already reached (19) years of age;

6.that at the time of T.Y.C.’s request on 7-2-07, T.Y.C. could not have previously released the juvenile from its custody without the trial court’s approval, because juvenile:

(a)had not served the minimum (3) year length of stay at T.Y.C. for a Family Code, Sec. 54.04(d)(3) Determinate Sentence commitment, pursuant to Texas Human Resources Code, Sec. 61.081(f)(2);

(b) nor had juvenile served and discharged his twelve (12) year sentence pursuant to Texas Human Resources Code, Sec. 61.084(b);

7.that Senate Bill No. 103 (an Act) relating to the Texas Youth Commission was passed by both houses, effective immediately on June 8, 2007; [and]

8.that on the effective date of said act, (June 8, 2007), while in lawful custody, the juvenile had already reached the age of (19) years.
The court concluded that at the time of adjudication and commitment, the court maintained the exclusive, original jurisdiction of T.G. pursuant to sections 51.04(a), 51.0411, and 54.11(a) and (h) of the family code and section 61.079(a) of the human resources code. See Tex. Fam. Code Ann. §§ 51.04(a), 51.0411 (West 2002), 54.11(a), (h) (West Supp. 2007); Former HR Code § 61.079(a). The court further concluded that the provisions of SB 103 were prospective in their effect, that the legislature did not intend for SB 103 to have retroactive effect, and that the law in effect when the child was adjudicated continued in effect. With respect to his transfer, the court further found that T.G. should be transferred to the TDCJ to serve the remainder of his twelve-year determinate sentence:

22.that at the time of this release hearing, [T.G.] had served approximately 21 months of his twelve (12) year sentence at the Texas Youth Commission, which 21 months do not include his 81 days pre-trial detention in the Bell County Juvenile Detention Center, and:

23.that the Respondent, [T.G.] is still in need of rehabilitation,

24.that the Juvenile-Respondent [T.G.] is at high risk to re-offend,

25.that the juvenile’s conduct and the welfare and safety of the community at large, as well as the T.Y.C. community, requires transfer, and;

26.that it is therefore in the best interest of [T.G.] and the welfare of the community at large, that [T.G.] be transferred to the Institutional Division of the Texas Department of Criminal Justice . . . to serve the remainder of his twelve (12) year determinate sentence.

The Controversy

SB 103, which was effective on June 8, 2007, reduced the age of youth who are eligible for confinement at the TYC from twenty-one years of age to nineteen. See SB 103, 2007 Tex. Gen. Laws at 446-47 (amending human resources code section 61.079), 449 (amending human resources code section 61.084). Because he was already nineteen at the time this change went into effect, T.G. contends that the juvenile court had no authority and was without jurisdiction to hold a transfer hearing and that the court abused its authority in ordering his transfer to the TDCJ for the completion of his determinate sentence. T.G. contends that he was entitled instead to mandatory release on parole.

DISCUSSION

In two issues, T.G. urges that (i) amendments to section 61.084 of the human resources code in SB 103 lowered the maximum age of confinement and the mandatory parole age from twenty-one to nineteen years of age and that he was entitled to immediate release without a hearing because he was nineteen at the time of the change and (ii) amendments to section 61.079 of the human resources code lowered the maximum age at which the TYC could request that T.G. be transferred from twenty-one to nineteen years of age and, because he was nineteen, the TYC did not have authority to request a transfer and the court lacked authority to hold a hearing or to order a transfer. T.G. does not challenge the original imposition of his determinate sentence.

Standard of Review

A review of the trial court’s decision as to whether the court had authority to hold a transfer hearing upon the TYC’s request—after the change of law and after T.G. became nineteen years of age—presents a matter of statutory construction, which we review de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). When construing a statute, our primary goal is to determine and give effect to the legislature’s intent. Id. To determine legislative intent, we look to the statute as a whole, as opposed to isolated provisions. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).

We review the trial court’s decision to transfer a juvenile from the TYC to the TDCJ under an abuse of discretion standard. In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006, pet. denied). In determining whether the trial court abused its discretion, we must consider the entire record to determine if the trial court acted without reference to guiding rules and principles. Id.

Juvenile Court Procedure

During the time a person is committed to the TYC, the Commission may request the court to release the person to supervision or transfer the person to the TDCJ. See Tex. Fam. Code Ann. § 54.11(a). Section 54.11 provides that when a juvenile is given a determinate sentence, upon the TYC’s request to transfer the juvenile to the TDCJ, the trial court is required to hold a hearing. Id. At the conclusion of the hearing, the trial court may either order the return of the juvenile to the TYC or the transfer of the juvenile to the custody of the TDCJ for the completion of his sentence. Id. § 54.11(i). If the Commission requests that the person be released to adult parole, the trial court may return the person to the TYC with or without approval to release that person under supervision. Id. § 54.11(j). If the Commission requests that a person be transferred to the TDCJ, the trial court may return the person to the TYC or order that he be transferred to the TDCJ. Id. § 54.11(i).
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In making a determination regarding transfer of a juvenile offender to the TDCJ, a trialcourt may consider: (1) the experiences and character of the person before and after commitmentto the TYC; (2) the nature of the penal offense and the manner in which it was committed; (3) theabilities of the person to contribute to society; (4) the protection of the victim or the victim’s family;(5) the recommendations of the TYC and the prosecuting attorney; (6) the best interests of theperson; and (7) any other factor relevant to the issue to be decided. See Tex. Fam. Code Ann.§ 54.11(k) (West Supp. 2007).Close A child committed to the TYC on a determinate sentence must remain at the TYC for a minimum period of time before release or transfer. See Tex. Hum. Res. Code Ann. § 61.081 (West Supp. 2007); Former HR Code § 61.084. The minimum length of stay depends upon the seriousness of the offense for which the child was committed. See Tex. Hum. Res. Code Ann. § 61.081.
For those who were committed to the Commission under a determinate sentence, as T.G. was here, transfer was automatic on the person’s twenty-first birthday—now his nineteenth birthday with the amendment—if the person had not already been discharged or transferred. See SB 103, 2007 Tex. Gen. Laws at 449 (amending human resources code to provide for automatic transfer at age nineteen instead of twenty-one).
The Statutes
This appeal concerns the interplay primarily between the amendments to two statutory provisions—sections 61.079 and 61.084 of the Texas Human Resources Code—by the enactment of SB 103, “an act relating to the Texas Youth Commission and the prosecution of certain offenses and delinquent conduct in the Texas Youth Commission and certain other criminal agencies,” which was passed and became effective on June 8, 2007. Providing for the referral of violent juvenile offenders for transfer to the TDCJ, before it was amended, section 61.079(a) provided in relevant part:

(a)After a child sentenced to commitment under Section 54.04(d)(3), 54.04(m), or 54.05(f), Family Code, becomes 16 years of age but before the child becomes 21 years of age, the commission may refer the child to the juvenile court that entered the order of commitment for approval of the child’s transfer to the institutional division of the Texas Department of Criminal Justice if:

(1)the child has not completed the sentence; and

(2)the child’s conduct, regardless of whether the child was released under supervision under Section 61.081, indicates that the welfare of the community requires the transfer . . . .
Former HR Code § 61.079(a) (emphasis added). Effective June 8, 2007, section 61.079(a) was amended to require the Commission to make a transfer referral to the juvenile court “before the child becomes 19 years of age.” See SB 103, 2007 Tex. Gen. Laws at 446-47 (emphasis added).
Section 61.084(g) was also amended by SB 103 in 2007. Prior to its amendment, section 61.084(g) provided:

The commission shall transfer a person who has been sentenced under a determinate sentence to commitment under Section 54.04(d)(3), 54.04(m), or 54.05(f), Family Code, or who has been returned to the commission under Section 54.11(i)(1), Family Code, to the custody of the pardons and paroles division of the Texas Department of Criminal Justice on the person’s 21st birthday, if the person has not already been discharged or transferred, to serve the remainder of the person’s sentence on parole as provided by Section 508.156, Government Code.
Former HR Code § 61.084(g) (emphasis added). As with section 61.079(a), section 61.084(g) was amended to change “21st birthday” to “19th birthday.” See SB 103, 2007 Tex. Gen. Laws at 449.
As reflected in a December 2007 report prepared at the direction of the Commission’s acting executive director, Dimitria Pope, the parties agree that one purpose of SB 103 was to reduce the population of youth in the TYC. See Tex. Youth Comm’n, State Leaders, Legislators, Parents, Employees, and Communities are Making a Difference at the Texas Youth Commission: A Report on the Progress & Impact of Senate Bill 103, at 4 (Dec. 1 2007). The report also addressed the effect the change in age would have on the institution population. Id. at 8-10. Youths who committed a misdemeanor were no longer to be eligible for placement in the TYC. Id. at 6, 10. As to the effect of the age change on its population, the report stated:

[Y]outh who are 19 years of age or older who committed their offense prior to the effective date of the law change and who have also completed their minimum length of stay may be eligible for release consideration from the TYC.
Id. at 10 (emphasis added). Later in the report when it expressly addressed offenders serving a determinate sentence and the effect of the reduction of eligibility age for confinement at TYC, the report concluded:

With the passage of the bill on June 8, 2007, an unintended consequence was that there were 159 sentenced youth confined in TYC that appeared to be eligible for immediate release. However, in reviewing the case files of these youth, many had not reached their minimum period of confinement.
Id. at 23.
Jurisdiction
Appellant urges that he “should never have been the subject of a transfer hearing” and that section 61.084 required a mandatory transfer to the TDCJ on parole for any child in the custody of the TYC who was under a determinate sentence and over the age of nineteen. Appellant fails to acknowledge the jurisdictional provision in juvenile cases that gives the juvenile court “exclusive original jurisdiction over proceedings under this title.” See Tex. Fam. Code Ann. § 51.04(a).
In construing a statute, our primary objective is to give effect to the legislature’s intent. City of San Antonio, 111 S.W.3d at 25. We are to construe a statute according to its plain language, unless the language is ambiguous or the interpretation would lead to absurd results that the legislature could not have intended. Williams v. State, Nos. PD-1948-06, 1949-06, & 1950-06, 2008 Tex. Crim. App. LEXIS 639, at *11 (Tex. Crim. App. May 14, 2008) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). “Whether or not the statute is considered ambiguous on its face,” we may consider the “object sought to be obtained,” the “circumstances under which the statute was enacted,” the “legislative history,” and the “consequences of a particular construction.” Tex. Gov’t Code Ann. § 311.023(1)-(3), (5) (West 2005). We presume that “a just and reasonable result is intended,” and the “public interest is favored over any private interest.” Id. § 311.021(3), (5) (West 2005). Against this background, we must determine whether the legislature in SB 103 sought to divest the juvenile court of jurisdiction when the juvenile turned nineteen and require a mandatory transfer of individuals still in the custody of the TYC who had reached the age of nineteen under the amended statute.
We conclude that the juvenile court retained jurisdiction of juveniles committed to the custody of the TYC under chapter 51 of the family code. The family code squarely addresses the jurisdiction of the juvenile court in sections 51.04 and 51.0411. See Tex. Fam. Code Ann. §§ 51.04, .0411. Section 51.04(a) provides for the juvenile court to exercise jurisdiction over juvenile cases as follows:

(a)This title covers the proceedings in all cases involving the delinquent conduct or conduct indicating a need for supervision engaged in by a person who was a child within the meaning of this title at the time the person engaged in the conduct, and, . . . the juvenile court has exclusive original jurisdiction over proceedings under this title.
Id. § 51.04(a). Section 51.0411 then speaks to the court’s retention of jurisdiction in transfer proceedings:

The court retains jurisdiction over a person, without regard to the age of the person, who is referred to the court under Section 54.11 for transfer to the Texas Department of Criminal Justice or release under supervision.
Id. § 51.0411 (emphasis added). Section 51.0411 makes clear that the court had jurisdiction over T.G. for purposes of the transfer hearing, even though he turned nineteen years of age before the referral occurred.
Other related provisions provide for the retention of jurisdiction by the juvenile court “without regard to the age of the person.” See, e.g., Tex. Fam. Code Ann. §§ 51.041, .0412 (West Supp. 2007). For example, section 51.041 provides for the court to retain jurisdiction if the court’s order “is reversed or modified and the case remanded to the court by the appellate court.” Id. § 51.041. Likewise, section 51.0412 provides for the court to retain jurisdiction if the adjudication or disposition proceeding or proceeding to modify disposition was not completed as long as the petition, motion to modify, or motion for transfer was filed while the juvenile was younger than eighteen years of age and the prosecutor exercised due diligence in an attempt to complete the proceedings. Id. § 51.0412. Each of these provisions applies “without regard to the age of the person.” Id. §§ 51.041, .0412. We find it significant that SB 103 did not amend any of these jurisdictional provisions. See SB 103, 2007 Tex. Gen. Laws at 424-27 (providing for amendments to the family code).
We thus conclude that SB 103 did not alter the juvenile court’s jurisdiction over transfer proceedings because it did not address these provisions. Even after the passage of SB 103, the juvenile court’s jurisdiction in transfer proceedings remains governed by chapter 51 of the family code. See Tex. Fam. Code Ann. § 51.0411.
Do the Provisions of Senate Bill 103 Apply Retrospectively?
T.G. contends that, because the provisions of SB 103 are to be immediately effective, he must either be discharged or transferred to the TDCJ to serve the remainder of his sentence on parole. See SB 103, § 53, 2007 Tex. Gen. Laws at 449 (amending human resources code section 61.084(g)); Tex. Gov’t Code Ann. § 508.156 (West Supp. 2007). He contends that the TYC’s referral request is governed by the new versions of sections 61.079(a) and 61.084(g) rather than by the versions in existence when his determinate sentence was initially imposed. We disagree.
“A statute is presumed to be prospective in its operation unless expressly made retrospective.” Tex. Gov’t Code Ann. § 311.022 (West 2005); see also Tex. Const. art. I, § 16 (“No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”). Statutes are only applied retroactively if the statutory language provides that the legislature intended that the statute be retroactive. Merchants Fast Motor Lines, Inc. v. Railroad Comm’n, 573 S.W.2d 502, 504 (Tex. 1978); State v. Humble Oil & Ref. Co., 169 S.W.2d 707, 708-09 (Tex. 1943).
In addition to the constitution and the general presumption that statutes apply only prospectively, we are informed by the plain language of SB 103. Certain provisions of SB 103 specify that it applies only prospectively. See, e.g., SB 103, § 67, 2007 Tex. Gen. Laws at 455. Section 67, relating to family code section 54.052 (credit for time spent in detention facility for child with determinate sentence) and human resources code section 61.0841(c) (determinate sentence parole), specifies that the changes in those sections “appl[y] only to conduct for which a child is adjudicated on or after the effective date of this Act.” See id. Thus, family code section 54.052 and the addition of the language in section 61.0841(c) that the TDCJ “shall grant credit for sentence time served by a person at the commission and in a juvenile detention facility, as recorded by the commission . . . in computing the person’s eligibility for parole and discharge from the department” are to be applied only prospectively. See id. Section 67 further provides:

A child who is adjudicated on or after the effective date of this Act is governed by the law in effect when the child was adjudicated, and the former law is continued in effect for that purpose.

Id.
Likewise, the legislature expressly made one provision of SB 103 retrospective. Section 65 provides:

A person committed to the Texas Youth Commission on the basis of conduct constituting the commission of an offense of the grade of misdemeanor under Subdivision (2), Subsection (d), Section 54.05, Family Code, as it existed before the effective date of this Act, must be discharged from the custody of the Texas Youth Commission not later than the person’s 19th birthday.

Id., § 65, 2007 Tex. Gen. Laws at 455 (emphasis added). That the legislature knew how to make a provision retrospective is clear. It is equally clear that the legislature sought only to effect an immediate discharge from the TYC for those persons who had committed a misdemeanor. It necessarily follows that the legislature did not intend to discharge or release to parole a person such as T.G. who had committed a felony and had received a determinate sentence.
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To the extent T.G. argues that the legislature intended for all of SB 103 to applyretrospectively merely because the legislature made one provision in SB 103 apply retrospectively,see SB 103, § 65, 2007 Tex. Gen. Laws at 455, we reject that argument. Nowhere in SB 103 did thelegislature expressly provide that the amendments to human resources code sections 61.079 and61.084 apply retrospectively. See In re M.C.C., 187 S.W.3d 383, 384-85 (Tex. 2006) (followinggeneral rule that statute is to be applied retrospectively only if statutory language demonstrateslegislative intent to do so); Ex parte Mangrum, 564 S.W.2d 751, 758 (Tex. Crim. App. 1978)(general rule of prospective application applies in the absence of express statement to the contraryby the legislature).Close We conclude that the legislature intended for the amendments to human resources code sections 61.079 and 61.084 to operate only prospectively.

CONCLUSION
We overrule T.G.’s issues and affirm the trial court’s order of disposition.

__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed: June 19, 2008
AFFIRMED: (Before Justices Patterson, Puryear and Henson)

In the Matter of T. G.--Appeal from County Court at Law No. 1 of Bell County

In the Matter of R.M, No. (Tex.App.- Austin, May , 2008)
) (Before Chief Justice Law, Justices Puryear and Waldrop)
(juvenile case) (affirmed)
Appeal from 98th District Court of Travis County

R.M., a juvenile, was adjudicated delinquent for possession of less than one gram of cocaine and, in a separate disposition order, was committed to the Texas Youth Commission for an indeterminate period of time. See Tex. Fam. Code Ann. §§ 54.03, .04 (West Supp. 2007). On appeal, R.M. contends that the trial court abused its discretion in committing him to TYC. We affirm the trial court's disposition order.
A trial court may not commit a juvenile to TYC unless it finds that commitment is in the child's best interest, all reasonable efforts were taken to avoid the need to remove the child from his home, and the child could not get the care, support, and supervision he needs to meet probation conditions in his home. Id. § 54.04(i)(1); In re C.C., 13 S.W.3d 854, 858 (Tex. App.--Austin 2000, no pet.) (op. on reh'g). A juvenile court has broad discretion in determining the suitable disposition of a juvenile who has engaged in delinquent conduct. In re A.I., 82 S.W.3d 377, 379 (Tex. App.--Austin 2002, pet. denied). In reviewing the court's decision on disposition, we ask whether the court acted in an unreasonable or arbitrary manner. Id. at 379-80. A trial court does not abuse its discretion if some substantive and probative evidence supports its decision. In re C.J.H., 79 S.W.3d 698, 702 (Tex. App.--Fort Worth 2002, no pet.). Legal and factual sufficiency may be relevant in assessing the trial court's exercise of its discretion, and we review evidentiary sufficiency under the standards applied in criminal cases. Id. at 702-04; see In re C.C., 13 S.W.3d at 858-59.
* * *
The evidence supports the trial court's observation that R.M. has a pattern of temporarily improving his behavior when faced with serious consequences, only to slip back into trouble. He was extremely disruptive at school, even though he was only on campus for a few hours a day, and in the spring of 2005, he stopped working despite being enrolled in a work-study program. R.M. was taken into custody six times in about five months time, from early March 2005 until the subject offense in early August, he had been recommended for the Job Corps or a GED program because of his poor performance in school, and the department believed his mother was inconsistent and tended to minimize R.M.'s problems. When released on furlough while in custody due to this charge, R.M. was involved in two different altercations. The court believed that R.M. needed more intensive supervision to give him support and to help him learn to control himself and made the findings required by section 54.04(i)(1) of the family code. When viewed in the light most favorable to the court's findings, the evidence is sufficient to show that TYC commitment is in R.M.'s best interest, that the department made all reasonable efforts to avoid removing him from his home, and that he cannot receive in his home the support, care, and supervision he needs. See In re C.C., 13 S.W.3d at 858. The same is true when all the evidence is viewed in a neutral light. See id. at 859. Although R.M. has shown that he is able to control his behavior when faced with serious consequences, he seems to slip back into misbehavior soon after. He and his family made arrangements for a full-day work program that would put him on track for graduation the following spring, but he had been enrolled in a similar program in the spring of 2005 and did not complete those requirements. We cannot hold that the trial court abused its discretion in determining that R.M. would be best served by being committed to TYC custody. See In re A.I., 82 S.W.3d at 379-80. We affirm the trial court's order of disposition.

Juvenile Law: In the Matter of MM (Tex.App.- Austin Feb. 6, 2008)

February 6, 2008
Civil Causes Decided:
AFFIRMED: Opinion by Justice Patterson (Before Justices Patterson, Puryear and Pemberton)

In the Matter of M. M.--Appeal from 98th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-18,723, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This is an appeal from a juvenile court order transferring M.M., a juvenile, from the Texas Youth Commission (TYC) to the custody of the Institutional Division of the Texas Department of Criminal Justice (TDCJ). On appeal, M.M. asserts that the trial court erred in admitting into evidence the State's psychological evaluation in violation of his Fifth Amendment rights. We affirm the trial court's order.

On March 23, 2003, the State filed a petition alleging delinquent conduct by M.M. M.M. pleaded true to the allegation and was found to have engaged in delinquent conduct, to wit, murder. Following a disposition hearing, M.M. received a forty-year determinate sentence, with a three-year minimum, in TYC. On November 18, 2005, by letter to the juvenile court pursuant to Texas Family Code section 54.11, TYC recommended that M.M. be transferred from TYC to TDCJ for the remainder of his sentence. See Tex. Fam. Code Ann. § 54.11 (West Supp. 2007).
At the transfer hearing, the trial court heard testimony from Dr. Ann Kelley, a psychologist with TYC who served as the Director of Clinical Treatment for the Giddings State School until she left just prior to the hearing to engage in private practice; Dr. Michael Hilgers, Jacqueline Daiss, and John Etheridge, associate psychologists with TYC at the Giddings State School; and Leonard Cucolo, a TYC representative serving as a liaison to the court.

At the transfer hearing, Dr. Hilgers testified to an evaluation of M.M. that he conducted in July 2005 over several days for the purposes of the transfer hearing. Hilgers testified that he advised M.M. of the purpose of the evaluation and that it might be used at a transfer hearing. Because "the Court relied in part on the psychological evaluation to make its determination on whether to transfer Appellant" to TDCJ, M.M. contends that Dr. Hilgers's psychological evaluation evidence was admitted into evidence in violation of his Fifth Amendment rights.

At the conclusion of the hearing, the trial court ordered that M.M. be transferred to TDCJ for the remainder of his sentence. The trial court identified the factors she considered in her determination. She stated:

In making this determination, the Court may consider the experiences, and the character of the person before and after commitment to the Texas Youth Commission. I can also consider the nature of the offense that you have committed, and the manner in which it was committed. Even if you had done everything, done all of those reports, your behavior, your actions show a continued pattern of engaging in being dangerous, in not changing. . . . For the protection of society and for the offense you have committed, today I transfer you for the remainder of your sentence to complete it in the Texas Department of Criminal Justice.
This appeal followed.

DISCUSSION

M.M. challenges the admission of the State's July 2005 psychological evaluation conducted for the purposes of the transfer hearing on the ground that it violated his Fifth Amendment rights against self-incrimination and Article I, Sections 10 and 19 of the Texas Constitution.

Standard of Review

We review a trial court's decision to transfer a juvenile from TYC to TDCJ under an abuse of discretion standard. In re D.L., 198 S.W.3d 228, 229 (Tex. App.--San Antonio 2006, pet. denied). In determining whether the trial court abused its discretion, we must consider the entire record to determine if the trial court acted without reference to guiding rules and principles. Id.

Transfer Proceedings

Section 54.11 of the family code provides that when a juvenile is given a determinate sentence, upon TYC's request to transfer the juvenile to TDCJ, the trial court is required to hold a hearing. Tex. Fam. Code Ann. § 54.11. At that hearing, section 54.11(d) allows the court to consider TYC reports as evidence:

[T]he court may consider written reports from probation officers, professional court employees, professional consultants, or employees of the Texas Youth Commission, in addition to the testimony of witnesses. Id. § 54.11(d). At the conclusion of the hearing, the trial court may either order the return of the juvenile to TYC or the transfer of the juvenile to the custody of TDCJ for the completion of his sentence. Id. § 54.11(i).

In making a determination regarding transfer of a juvenile offender to TDCJ, a trial court may consider: (1) the experiences and character of the person before and after commitment to TYC; (2) the nature of the penal offense and the manner in which it was committed; (3) the abilities of the person to contribute to society; (4) the protection of the victim or the victim's family; (5) the recommendations of TYC and the prosecuting attorney; (6) the best interests of the person; and (7) any other factor relevant to the issue to be decided. Id. § 54.11(k). Evidence of each factor is not required, and the trial court need not consider every factor in making its decision. In re J.L.C., 160 S.W.3d 312, 313-14 (Tex. App.--Dallas 2005, no pet.); In re R.G., 994 S.W.2d 309, 312 (Tex. App.--Houston [1st Dist.] 1999, pet. denied).

Admissibility of Psychological Evaluation

M.M. challenges the admission of the psychological evaluation conducted by Dr. Hilgers because, he contends, it violates his state and federal constitutional rights by compelling him to supply incriminating evidence without being advised of his rights. M.M. complains only of the admission of a single psychological evaluation--the one conducted by Dr. Hilgers in July 2005. Although other evaluations are included with the exhibits, they do not appear to be the subject of M.M.'s challenge. The State responds that M.M. has failed to preserve this point of error and that, in any event, it is without merit.

We first address M.M.'s objections as raised at trial. Prior to Dr. Kelley's testimony, the State sought to introduce into evidence State's Exhibits No. 1 and No. 2A through 2E which had been provided to the defense prior to the hearing. State's Exhibit No. 1 was a letter dated January 9, 2006, from Leonard Cucolo to the trial court enclosing a large volume of documents--designated State's Exhibits 2A through 2E--containing summary reports of M.M.'s progress, case plans, and psychological evaluations completed during M.M.'s commitment to TYC. The letter stated that the "casework masterfile and security file" had previously been delivered. M.M. generally objected to the introduction of the documents. His counsel lodged the following objection:
With regard to these documents, there are matters within these documents which constitute hearsay. And also I believe constitute violations of Defendant's right to cross examination of the witnesses. We're going to ask the Court to redact or to ignore those particular sections which are
in violation of such, particular pursuant to cross.

In response, the State argued that the law is clear that TYC records and reports are admissible in transfer proceedings. The trial court overruled the objection and the exhibits were admitted. After Dr. Kelley testified to M.M.'s lack of progress and inability to engage in treatment and effect changes in his behavior, Dr. Hilgers testified. Although Dr. Hilgers had various contacts with M.M., he was specifically called to testify about the psychological evaluation he conducted on M.M. over several days in July 2005 in connection with the possibility of transferring M.M. to TDCJ. When Dr. Hilgers testified to his discussion with M.M. about the underlying offense for
which M.M. was in TYC, M.M.'s counsel stated:

Your Honor, with regard to case law involving psychologists and psychiatrists talking to Defendants who aren't in custody, I believe this would fit the parameters of being custodial interrogation. And for that reason we ask the Court to strike any further mention of this interview by this psychologist.

The trial court overruled the objection, and Hilgers continued his testimony. M.M. made no further objection during Hilgers's testimony. On appeal, M.M. does not challenge the exhibits on hearsay grounds, nor does he challenge the admission of Hilgers's testimony as he sought to do in the court below. Rather, he challenges as error, the admission of the evaluation itself.
In order to preserve error for appellate review, there must be a timely and specific trial objection. See Tex. R. App. P. 33.1; DeBlanc v. State, 799 S.W.2d 701, 718 (Tex. Crim. App. 1990). Moreover, the complaint on appeal must comport with the trial objection, or nothing is presented for review. See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).
M.M. has failed to preserve error for appellate review. Because the initial hearsay objection to the several hundred pages of documents is too general and insufficient to inform the trial court of the basis of the objection, it fails to preserve any error for review. And because the objection based on custodial interrogation seeks only to strike any further mention of the interview, it does not suffice to preserve the challenge to the admissibility of the evaluation itself. Because M.M.'s objection on appeal does not comport with his objections below, M.M. has failed to preserve anything for our review. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

As the court of criminal appeals explained in Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003),

To preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection. In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection. An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection.

See also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) ("Our rule . . . is that overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling."). The complained-of psychological evaluation was admitted at the beginning of the trial prior to the testimony of Dr. Kelley. Except for an objection to the "mention of this interview by this psychologist," M.M. did not otherwise object to it. At no time did M.M. object on the grounds he now raises on appeal. Even if M.M. preserved an objection to the admission of the evaluation report and to Hilgers's testimony, M.M.'s claim is without merit. A transfer hearing under section 54.11 of the family code is not considered a "stage of a criminal prosecution." Under Texas law, a transfer hearing is not a trial; a juvenile is neither being adjudicated nor sentenced. In re D.L., 198 S.W.3d at 230; In re J.M.O., 980 S.W.2d 811, 813 (Tex. App.--San Antonio 1998, pet. denied); In re D.S., 921 S.W.2d 383, 387 (Tex. App.--Corpus Christi 1996, writ dism'd w.o.j.). The transfer hearing is a "second chance hearing" after the juvenile has already been sentenced to a determinate number of years. In re D.S., 921 S.W.2d at 387. Because the juvenile is already being punished for his original conduct in which he was adjudged delinquent, in making this second chance determination, the legislature has provided that the trial court should be able to consider the juvenile's behavior since commitment, and the transfer statute expressly allows consideration of such reports. Id.; see Tex. Fam. Code Ann. § 54.11(d) (court may consider written reports from professional consultants and employees of TYC in addition to testimony). Section 54.11(e) specifies the procedures to be employed in the hearing and further provides:
At the hearing, the person to be transferred or released under supervision is entitled to an attorney, to examine all witnesses against him, to present evidence and oral argument, and to previous examination of all reports on and evaluations and examinations of or relating to him that may be used in the hearing. Tex. Fam. Code Ann. § 54.11(e). Thus, because a transfer hearing is not a stage of a criminal prosecution, the hearing does not require the same stringent requirements as a trial in which a person's guilt is determined, and the statute expressly provides for the consideration of the evaluation M.M. now challenges, we hold that the trial court did not err in admitting the evaluation. In re J.M.O., 980 S.W.2d at 813; In re D.S., 921 S.W.2d at 387. (1) We overrule M.M.'s single point of error.

CONCLUSION

Having overruled M.M.'s point of error, we affirm the trial court's order.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: February 6, 2008
1. M.M. does not challenge the constitutionality of the relevant statutes.

Juvenile's probation revoked - Austin appeals court affirms

In the Matter of L. T. H, No. (Tex.App.- Austin, Sep. 6, 2007)(Opinion by Justice Pemberton)(juvenile who violated condition of probation sent to TYC)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 98th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-24,907, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

The juvenile court committed L.T.H. to the Texas Youth Commission ("TYC") after L.T.H. pleaded true to a probation violation. In two points of error, L.T.H. asserts that the order modifying his disposition failed to specifically state the reasons for the modification and that the district court abused its discretion in committing L.T.H. to TYC. We affirm the order.

BACKGROUND

On April 21, 2005, the juvenile court, after finding that L.T.H. had engaged in delinquent conduct by committing the offense of assault, placed L.T.H. on probation for nine months. On September 7, 2005, the State moved to modify the disposition, alleging that L.T.H. had violated a condition of his probation by failing to report to his probation officer. On October 6, after hearing evidence on the State's motion, the juvenile court modified the disposition, extending the probation until May 2006.

As a term and condition of his probation, L.T.H. was required to be inside the residence of his grandparents between the hours of 9:00 p.m. and 6:00 a.m. On February 28, 2006, the State moved to modify the disposition, alleging that L.T.H. failed to comply with this condition from November 1, 2005 to the date of the motion. At the July 6, 2006 modification hearing, L.T.H. pleaded true to the State's allegation.
Following L.T.H.'s plea, the juvenile court heard evidence from Cathy McClaugherty, a caseworker with the Travis County Juvenile Probation Department. McClaugherty testified that the department's recommendation was commitment to TYC. McClaugherty explained the department's reasoning to the juvenile court. After L.T.H. was placed on probation, L.T.H. had first spent 90 days in the department's "Impact Program," which is a "brief behavior modification program." Upon completion of that program, L.T.H. was allowed to return home. However, according to McClaugherty, L.T.H. "has absconded at least twice for a period of time." Additionally, the "family has a history of moving without notifying the Probation Department." McClaugherty continued,

We've . . . had psychological evaluations completed, attempted to engage the family in services through MHMR. We've also attempted to hook him up, if you will, with Southwest Key tracking to improve his accountability. And we've also tried an electronic monitor to improve his accountability and to get him to stay at home.

All of these efforts, McClaugherty testified, were unsuccessful in keeping L.T.H. at home.
When asked by the juvenile court if there were any other reasonable efforts that might be taken by the department, McClaugherty replied, "None that I'm aware of at this time. We've also attempted to staff him for our Intensive Supervision Probation program. And he was declined based on a history of both him and his family not cooperating and not following through with probation."

McClaugherty also testified that she believed commitment to TYC would be in the child's best interest because L.T.H. "has difficulty functioning in the community. We have not been able to get him to engage in probation." McClaugherty also believed that commitment to TYC was in "the community's best interest" because L.T.H.'s "offenses speak to the fact that he appears to be a danger to other people in the community."
On cross-examination, McClaugherty testified that the offenses to which she was referring were two misdemeanor assaults involving L.T.H.'s "peers at school." L.T.H. had never been accused of a felony offense, and L.T.H.'s last alleged misdemeanor assault occurred prior to his probation, in February 2005. McClaugherty also acknowledged that L.T.H. had been diagnosed as suffering from mild mental retardation and "cannibis abuse."

On redirect, McClaugherty testified that because of L.T.H.'s "absconder status," L.T.H. had been unavailable and out of contact with the department for approximately six months during the previous year. The juvenile court inquired as to the reason the department was unable to find L.T.H., and McClaugherty explained that during the period of time when he absconded, attempts were made to locate the family at their last known address. The department discovered that the family had moved but was unable to obtain a new address.
L.T.H.'s grandmother was present at the hearing but, when given the opportunity by the juvenile court to speak, declined the opportunity. L.T.H.'s uncle, who had been considered as a possible placement, was not present at the hearing.

At the conclusion of the hearing, the juvenile court committed L.T.H. to TYC. This appeal followed.

DISCUSSION

Specificity of the juvenile court's order

In his first point of error, L.T.H. asserts that the juvenile court's order was deficient because it failed to specifically state the reasons for the modification of the prior disposition. Section 54.05(i) of the family code provides, "The court shall specifically state in the order its reasons for modifying the disposition and shall furnish a copy of the order to the child." Tex. Fam. Code Ann. § 54.05(i) (West Supp. 2006). Section 54.05(m) requires that the juvenile court's order committing a child to the TYC include a determination that:

(A) it is in the child's best interests to be placed outside the child's home;
(B) reasonable efforts were made to prevent or eliminate the need for the child's removal from the child's home and to make it possible for the child to return home; and
(C) the child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.
Id. § 54.05(m) (West Supp. 2006).

The modifying order must specifically recite the conduct which prompted the trial court to modify its prior order of disposition. K.W.H. v. State, 596 S.W.2d 248 (Tex. Civ. App.--Texarkana 1980, no writ). Providing specific reasons for the disposition provides the child with notice of the court's reasons so that the child can determine the need for an appeal. In re J.R., 907 S.W.2d 107, 110 (Tex. App.--Austin 1995, no writ). Additionally, a record is created for the appellate court to rely on in making its decision about whether sufficient evidence supports the juvenile court's findings and determinations. In re L.R., 67 S.W.3d 332, 336-37 (Tex. App.--El Paso 2001, no pet.). Therefore, merely reciting statutory language will not be sufficient to justify the juvenile court's ruling. In re J.T.H., 779 S.W.2d 954, 959 (Tex. App.--Austin 1989, no writ). However, statutory language supplemented by additional findings is sufficient to meet the requirements of the family code. See In re P.L., 106 S.W.3d 334, 338 (Tex. App.--Dallas 2003, no pet.) (order tracking language of section 54.05 and explaining court's reasons was appropriate). The inclusion of the offense and its surrounding circumstances in an order consisting of mainly statutory language is sufficient. J.T.H., 779 S.W.2d at 959.

In this case, the juvenile court's order specified that L.T.H. violated the condition of probation requiring him to "be inside the residence of [his] grandparents each day between 9:00 p.m. and 6:00 a.m., unless accompanied by [his] parent or guardian." The order further specified that L.T.H. "failed to be inside the residence of his [grandparents] on November 1, 2005 to present." Additionally, the order specified that L.T.H. "will not accept parental supervision and has demonstrated a disregard for all authority." The order then recited the necessary statutory language:

[L.T.H.], in [L.T.H.]'s home, cannot be provided the quality of care and level of support and supervision that [L.T.H.] needs to meet the conditions of probation. All reasonable efforts were made to prevent or eliminate the need for [L.T.H.]'s removal from home and to make it possible for [L.T.H.] to return home. The Court further finds that [L.T.H.] has been removed from his home and the Court approves of the removal. The Court further finds that the local resources of this Court are not adequate to meet such needs or accomplish the necessary protection of the public.

It therefore appears to the Court that the best interest of [L.T.H.] and of society will be served by committing [L.T.H.] to the care, custody, and control of the Texas Youth Commission.

In addition to reciting the necessary statutory language provided for in section 54.05(m), see id., the order complies with section 54.05(i) by specifically stating the reasons for modifying the disposition. L.T.H. "failed to be inside the residence of his [grandparents] on November 1, 2005 to present," which was a direct violation of one of the conditions of his probation. Additionally, the order specified that L.T.H. "will not accept parental supervision and has demonstrated a disregard for all authority." Finally, the juvenile court specified that the best interest "of society" would also be served by committing L.T.H. to TYC. See J.T.H., 779 S.W.2d at 959 (holding that juvenile court's "listing of protection of the public as a factor" in committing juvenile to TYC, when combined with other reasons, satisfied specificity requirement). We hold that the order satisfies the specificity requirement of section 54.05(i). We overrule L.T.H.'s first point of error.

Commitment to TYC

In his second point of error, L.T.H. contends that the juvenile court abused its discretion in committing appellant to the Texas Youth Commission. Section 54.05(j) of the family code provides that:
If, after conducting a hearing to modify disposition without a jury, the court finds by a preponderance of the evidence that a child violated a reasonable and lawful condition of probation ordered under Section 54.04(q), the court may modify the disposition to commit the child to the Texas Youth Commission under Section 54.04(d)(3) for a term that does not exceed the original sentence assessed by the court or jury.
Tex. Fam. Code Ann. § 54.05(j) (West Supp. 2006). L.T.H. concedes that the evidence is legally and factually sufficient to find that he violated a condition of his probation. However, he contends that the juvenile court's decision was "arbitrary and unreasonable" because the violation was "not his fault." L.T.H. argues that because his family has a "history of moving without notice to the probation department" and because he is "mildly mentally retarded," the probation violation was "out of his realm of control." L.T.H. further argues that commitment to TYC is usually "reserved for only serious juvenile offenders." See In re J.P., 136 S.W.3d 629, 634 (Tex. 2004) (Schneider, J., concurring).

We review decisions to commit juveniles to TYC for abuse of discretion. Id. at 632. "Juvenile courts are vested with a great amount of discretion in determining the suitable disposition of children found to have engaged in delinquent conduct, and this is especially so regarding hearings to modify disposition." In re K.B., 106 S.W.3d 913, 915 (Tex. App.--Dallas 2003, no pet.). "Under an abuse of discretion review, we reverse the trial court only if the trial court has acted in an unreasonable or arbitrary manner." Id.

We cannot conclude that the juvenile court abused its discretion in committing L.T.H. to TYC. L.T.H. pleaded true to violating a condition of his probation. This was the second time that the juvenile court had found that L.T.H. violated a condition of his probation. At the modification hearing, the juvenile court heard evidence that the department had attempted several methods to keep L.T.H. at home, but that none of those methods had succeeded. The juvenile court also heard evidence that L.T.H.'s family had a history of not cooperating with the probation department, and the juvenile court could reasonably infer from this evidence that there would be subsequent violations of probation if L.T.H. remained under the supervision of his grandparents. While L.T.H. did argue that his uncle was perhaps a more suitable placement, his uncle did not show up at the hearing.

Although L.T.H. asserts that his "mild mental retardation" and his family's role should excuse his probation violations, he does little to elaborate on these arguments and the juvenile court could have concluded otherwise on this record. As for L.T.H.'s argument that TYC is reserved for "more serious offenders," we note that L.T.H. was originally placed on probation for committing two misdemeanor assaults and we will not second-guess the juvenile court's judgment call. On this record, we hold that the juvenile court did not abuse its discretion in committing L.T.H. to TYC. We overrule L.T.H.'s second point of error.

CONCLUSION

We affirm the order of the juvenile court.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: September 6, 2007

Juvenile transferred to state jail to complete 20-years sentence for attempted capital murder - Austin Court of Appeals affirms transfer

In the Matter of R. C, No. (Tex.App.-Austin, Aug. 24, 2007)(Opinion by Chief Justice Law)(juvenile adjudicated for attempted capital murder transferred to state jail, decision affirmed on appeal)(Before Chief Justice Law, Justices Puryear and Henson)
In the Matter of R. C.--Appeal from 98th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-17,565, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

In October 2000, appellant was adjudicated delinquent based on the underlying offense of attempted capital murder. Appellant was committed to the Texas Youth Commission (TYC) on a twenty-year determinate sentence. In January 2006, the TYC requested that R.C. be transferred to the Institutional Division of the Texas Department of Criminal Justice (TDCJ) to complete his determinate sentence. See Tex. Hum. Res. Code Ann. § 61.079(a) (West Supp. 2006). In April 2006, after a hearing, the court ordered appellant to be transferred to the TDCJ. See Tex. Fam. Code Ann. § 54.11 (West Supp. 2006). In one issue on appeal, appellant contends that the trial court abused its discretion in ordering this transfer. We affirm the trial court's order.

Background

At the transfer hearing, numerous witnesses testified. Most of the witnesses were employees of TYC who had dealt with appellant in various capacities. Jacqueline Daiss, a therapist at the Giddings State School, testified as the TYC psychological examiner. She described appellant's record with TYC. As of June 5, 2005, the date of the examination, appellant had accrued 58 documented incidents in the "Correctional Care System," including seven category one referrals, the most serious category. Among the problems documented were an "aggressive confrontation" with another student in November of 2005 and involvement in stealing letters and pornography from a "staff desk." Several incidents involved gang related activity. However, Dais characterized appellant's TYC record as revealing very few major incidents.

Samuel Adepipe, appellant's most recent caseworker, described TYC's methods of assessing a juvenile's progress. Each juvenile is assessed in three different areas: academics, behavior, and correctional theory. The correctional theory area is weighted more heavily than the other two areas in making an overall assessment of the juvenile's progress. Within each area, a rating of zero to four, with four being the best rating, is assigned. The juveniles need to meet certain goals to move from one rating to the next. Appellant achieved ratings of A-4 and B-4. He had earned his GED and high school diploma, as well as learning marketable skills in construction and cabinet making. However, appellant's correction theory rating had remained at C-2 for much of his time at TYC. (1) Adepipe testified that correction theory was important because it reflected a juvenile's attitude toward his crime. The principal reasons for appellant remaining at level two were his failure to take responsibility for his actions, tendency to blame others for his problems, and failure to express remorse or regret for his crime.

A phase assessment hearing is held to assess a juvenile's progress and whether the juvenile can move from C-2 to C-3. Achieving a C-3 rating shows that the juvenile has moved from understanding how they were affected in their lives by their offense to the effect their actions had on others. A juvenile at level C-3 has recognized the patterns of behavior and thought that lead to committing crimes and victimizing other people and accepted responsibility for his actions.

Josh Ethridge, an associate psychologist at the Giddings State School, testified that he sat in on phase assessment reviews for appellant in October 2005 and January 2006. He described how important it was for the students to learn to have real empathy for their victims. Ethridge testified that although appellant made progress in this area and was able to talk about empathy, the members of the phase assessment review team did not feel that he was being genuine or honest in his feelings. Further, he had failed to accept responsibility for his actions, both in seeming to blame the victims of his crime and in blaming others for his referrals within TYC.

The treatment team felt that he was being dishonest, manipulative and still viewed himself as the victim. Ethridge said that he thought that appellant attempted to "front" or fake remorse. This inability to display true empathy prevented appellant from achieving level C-3. Ethridge acknowledged that he knew of no studies that linked empathy and recidivism, however.
Appellant was at one time in a specialized group within TYC to treat capital offenders (COG). His case worker while in that group, Maxine Cooper, testified that appellant presented "a risk to the community." She based this assessment on his patterns of thinking, his manipulation, his being deceitful and sneaky, and his lack of empathy. She stated in her "Youth Behavior Summary" that he had "demonstrated the ability to maintain appropriate behavior when he makes the effort as well as demonstrate[d] the ability to master excellent skills in manipulation and deception." She said that although he had many strong qualities and was a likable person, his inability to change his patterns of thinking would make him a threat to victimize people in the future. He was eventually removed from the COG program because of his inability to complete the "Crime Story" portion of the program. Specifically, he left out important information about the offense and failed to display "care and concern" for others.

Nicolas Ramos, appellant's instructor in the cabinet construction program, testified that he had taught appellant for two years and never had behavioral problems with appellant. Appellant spent several hours a day in his class. He said that appellant would be able to get a job without any difficulty because of the skills he had developed. Appellant would help new students learn the shop's rules and guidelines. However, Ramos never spoke to appellant about the crime or appellant's feelings about his past. Sometimes appellant would be depressed about the possibility of being transferred to TDC and Ramos would tell him to talk to his case worker. In general, he does not read a student's file unless he has a serious concern about that student, so he was not familiar with the details of appellant's crime or his disciplinary record within TYC. He would be comfortable working with appellant or having appellant live next door to him.

Brandon Griggs, a correction officer, had worked at Giddings for nine months at the time of the transfer hearing. Appellant was housed in Griggs's dorm. Griggs never had a behavioral problem with appellant. Appellant participated well in the behavior group that Griggs ran and helped out the other students. He said that appellant had expressed shame about his offense. Appellant told Griggs that he wanted to get a job, have his own family and place to live, and build a soccer field for local kids. In his opinion, appellant was rehabilitated.

Leonard Cucolo, the TYC court liaison, presented the formal recommendation that appellant be transferred to TDCJ. He gave his opinion that appellant's case was a hard one that in many ways "boiled down to" subjective determinations of the staff that evaluated him. However, he also described the assault on another TYC juvenile which occurred six months before the transfer hearing, after appellant knew he was being evaluated for possible transfer to TDCJ and in a "high restrictions" environment. Cuculo considered this assault an indication that appellant was still using a lot of the same type of thinking and behavior that caused his crime even after five years of exposure to rehabilitative programs. There were no more intensive programs available to appellant than the ones that he had already tried. In any event, appellant would not be able to remain at TYC after age 21.

In addition to testimony about appellant's behavior while in TYC, there was testimony from various counselors concerning appellant's history before he attempted to commit capital murder. He had been referred to the juvenile system for aggravated assault for threatening his mother with a knife; assault with injury for hitting his brother with a stick; arson; truancy; and making a false report. He had assaulted teachers and peers, made terroristic threats, possessed weapons, and called in a bomb threat to his school when he was 13. In a psychological report that was in evidence, he said that he had been fascinated with knives from an early age and had stabbed one gang member. When asked about the stabbing, he stated that he "liked to get people back" and said that he intended to hurt or kill the gang member. Daiss testified that appellant had told her about conduct that went outside the official records. Most of the behavior involved gang-related activities such as burglaries, destruction of property, and transporting cocaine and marihuana for the gang. He also said that he had been "jumped into" a gang called Murder Cide Crips at age 11. However, she and other of appellant's therapists were suspicious that he was overstating his gang history.

Appellant was described as having been diagnosed with "conduct disorder, adolescent type, severe." (2) Such a diagnosis indicates a risk for future criminal behavior.

The targets of the crime underlying appellant's adjudication as delinquent were the parents of appellant's girlfriend and had forbidden her to see him anymore. Appellant, who was fourteen at the time, entered their home while they were asleep. He was dressed entirely in black, with a bandanna and pantyhose hiding his face. He had taped his shoes to minimize footprints. He carried two knives taped to his legs. The mother awakened first and alerted the father that someone was at the door. He confronted appellant and, in the altercation that followed, appellant stabbed both the father and mother. Eventually, the couple was able to restrain appellant and call the police.

At the hearing, the parents testified that they would be so frightened if appellant were released that they would obtain concealed handgun licenses. The father testified that he sustained six knife wounds from the attack. At the time of this hearing, he still experienced problems affecting the use of his right arm because of the knife wounds. The mother testified that she can no longer sleep without lights on, gets up two or three time a night to check on the family, no longer goes out at night, and sleeps facing the door. She said that they had to move out of their previous home and change jobs.

Marcus Ramirez, the program director for the super intensive parole supervision program for the State of Texas, described the security features of the program. However, he said that only about one in ten offenders referred to the program is actually placed in the program. The court had no power to place the juvenile in the program; the parole board has that power.
Appellant's mother did not testify, but was allowed to speak. She expressed sympathy to the victims and said that her son had learned that what he did was wrong while in TYC and had expressed regrets for his crime. She did not consider him a threat to the victims.

Discussion

Standard of Review

A juvenile committed to TYC under the family code may be referred to the juvenile court for approval of the transfer of the child to TDCJ if the juvenile is between the ages of sixteen and twenty-one, the juvenile has not completed his sentence, and the juvenile's conduct indicates that the welfare of the community requires the transfer. Tex. Hum. Res. Code Ann. § 61.079. The standard of review for a transfer decision is abuse of discretion. In re J.L.C., 160 S.W.3d 312, 313 (Tex. App.--Dallas 2005, no pet.); In re C.L., 874 S.W.2d 880, 886 (Tex. App.--Austin 1994, no writ). The reviewing court analyzes the district court's decision to see if it was made without reference to guiding or principles. J.L.C., 160 S.W.3d at 313; C.L., 874 S.W.2d at 886. A transfer will only be reversed if the court acted in an unreasonable and arbitrary manner. J.L.C., 160 S.W.3d at 313.

The trial court may consider the following factors when evaluating the transfer:

(1) the experiences and character of the person before and after the commitment to the youth commission;
(2) the nature of the penal offense that the person was found to have committed and the manner in which the offense was committed;
(3) the abilities of the person to contribute to society;
(4) the protection of the victim of the offense or any member of the victim's family;
(5) the recommendations of the youth commission and the prosecuting attorney;
(6) the best interests of the person; and
(7) any other factor relevant to the issue to be decided.
Tex. Fam. Code Ann. § 54.11(k).

The trial court need not consider all of the listed factors and
may assign different weights to the factors it considers. J.L.C., 160 S.W.3d at 313-14; C.L., 874 S.W.2d at 886.

Application

Appellant had an extensive history of offenses before his commitment to TYC. Further, most of those offenses were of a violent nature: assaults against family members and others, arson, and terroristic threats. He had also been diagnosed with early onset conduct disorder, a risk factor for re-offending. The second factor, the offense committed and the manner in which the offense was committed, weighs heavily against appellant. At fourteen, with the only provocation being the disapproval of his relationship with their daughter, he committed a brutal and carefully calculated offense against the parents. (3)

Weighing in appellant's favor, he has developed technical skills that would allow him to contribute to society. He completed his high school education and secured marketable skills that would allow him to be self-supporting. However, as detailed in the testimony at the transfer hearing, the professionals working with him did not think that he had developed certain very fundamental attitudes and values that would allow him to use these skills and function in society. He had not shown empathy for his victims, was prone to blame others for his problems, and continued to use violence, as demonstrated by his attempted assault on another juvenile
while aware that he was being evaluated for possible transfer to prison.

Although appellant has made no threats toward the victims, they feel endangered should he be released. Appellant's caseworkers testified that appellant continues to see himself as the victim of the father's "persecution" in harboring an unfounded dislike of appellant that resulted in the severing of appellant's relationship with the daughter. Such a thought process is part of the overall concern that appellant still thought in the same way that lead to his commitment in the first place.

The caseworkers and psychologists who had worked with appellant recommended transfer. The core concern about appellant was his failure to show empathy toward his victims and failure to take responsibility for his actions. Although one corrections officer said that he had heard appellant express shame for what he did, that evidence was contradicted by the various caseworkers who did not think that appellant felt empathy or remorse. One psychologist, Josh Ethridge, testified that he thought that appellant attempted to "front" or fake his remorse. He was removed from the COG program because he failed to accurately describe his crime.
Appellant argues that he had done well in his academic and vocational educational endeavors, and that his B-4 (highest level) behavior rating indicates that his behavior had improved at TYC. Appellant did not have the large number of referrals that some other juveniles did. However, he did have seven category one referrals, including the attempted assault.

With regard to the person's best interest factor, the State notes that it is "difficult to argue that a person is best served by limiting his freedom." The State notes his pre-TYC behavior was marked by a string of crimes, truancy, and misbehavior. In the structured environment of TYC however, he had been able to accomplish various goals. Appellant uses the same evidence of progress to argue for parole.

The focus of the evaluation was that appellant continued to display the same thought processes, in particular lack of empathy and failure to take responsibility for his actions, that resulted in his TYC placement. Without such changes, the staff evaluation was that transfer to TDCJ was the most appropriate placement. Appellant's counsel at trial vigorously cross-examined the various TYC caseworkers about their lack of contact with Ramos and Griggs, who spent more time with appellant than the caseworkers and who had a more favorable opinion of appellant than those caseworkers in an attempt to show that these various reports were deficient and to plead for parole.

The court engaged in a thorough analysis of the evidence. The court spoke at length to appellant. She told him that there were two fundamental reasons to send him to the TYC: rehabilitation and punishment. She told him that many times she had opposed the TYC's recommendation. She said that she did not think that he had been able to connect with Adedipe as a caseworker, and she was not sure she blamed appellant for that. She noted that Ramos, the shop teacher, a person with whom he connected, "drew a line" about how engaged he would become with the psychological aspects of his students. But, she also told appellant that he had not done "the hard work" of confronting and dealing with what he had done, not "put[] up walls" to block what he had done, saying: "And whether you do that at TYC, or on your own, or at TDCJ, you have to let yourself feel, live, and breathe, and quit trying to build a wall around yourself to act like it didn't happen; because it did. And it is that problem that I have that prevents me from granting your request."

She observed that the only time appellant made eye contact with her was when the father said that he forgave appellant and appellant had a look of shock on his face. She noted that she had not heard anything from appellant about wanting to do something to "make it up" to the victim. The court noted that "even those who believe in you the most," did not think that he had ever internalized what he did. The court concluded: "I do this because you committed a heinous crime, and you have not confronted it. And I don't know if society is safe, and you have some more time to pay."

Conclusion

There was extensive testimony about appellant's performance in TYC. The court's statements at the close of the hearing made it clear that she had considered factors in appellant's favor as well as factors working against him. Based on this record, we cannot say that the court's decision was made without reference to guiding rules or principles or that the court acted in an unreasonable and arbitrary manner. See J.L.C., 160 S.W.3d at 313. Accordingly, we affirm the trial court's order.

W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: August 23, 2007

1. Appellant was placed on phase level C-3 for five months in 2002. He was demoted to level C-2 because of behavior problems, ongoing problems in group therapy, being manipulative and deceptive, and involvement in gang-related activities. He failed to complete numerous assignments under his individual case plan, in spite of being warned that a demotion would occur.
2. One psychological report classified it as "childhood onset," making the disorder even more severe.
3. From some of the TYC reports dealing with the underlying offense, it appears that appellant's girlfriend asked appellant to kill her parents. In some reports, appellant disclosed that he had planned to kill her as well.