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In re A.M.

Court of Appeals of Texas, Second District, Fort Worth

June 29, 2017

IN THE MATTER OF A.M.

         FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 323-100797-14

          PANEL: WALKER, KERR, and PITTMAN, JJ.

          MEMORANDUM OPINION [1]

          SUE WALKER JUSTICE

         I. Introduction

         Appellant A.M. perfected this appeal from the trial court's order transferring him from the Texas Juvenile Justice Department (TJJD) to the Institutional Division of the Texas Department of Criminal Justice (TDCJ). See Tex. Fam. Code Ann. § 56.01 (West Supp. 2016). In a single issue, Appellant argues that the trial court abused its discretion by transferring him to the TDCJ instead of placing him on parole.[2] We will affirm.

         II. Factual and Procedural Background

         In 2014, when Appellant was sixteen years old, he and two adult companions burglarized a home at around 5:00 a.m. One of the adults carried a "machine gun, " and the other carried a shotgun; Appellant carried a pellet rifle[3]he had found in the home's yard. While the adults confiscated items from the home, Appellant pointed his gun at the victims to scare them so that they would not move. The adults grabbed televisions, cell phones, tools, and $2, 200 in cash.

         The trio left the home and unloaded the stolen property into a shed on a nearby street. There they saw four Hispanic men loading a truck and decided to rob them as well. They took cash and tools from the Hispanic men. Appellant told a police detective that he was paid $250 for his participation in the robberies.

         The State filed a petition alleging that Appellant had engaged in delinquent conduct by committing nine counts of aggravated robbery with a deadly weapon.[4] A grand jury approved the prosecutor's determinate sentencing referral.[5] After a hearing, the trial court adjudicated Appellant delinquent on six of the nine counts charged, found that Appellant had used or exhibited a deadly weapon during the commission of the offense, and committed Appellant to the TJJD for a term of ten years subject to a possible transfer to the TDCJ.[6] In November 2016, TJJD notified the court that Appellant would turn nineteen years old before completing his three-year statutory minimum period of confinement.[7] The executive director of TJJD wrote a letter to the trial court requesting a hearing to determine whether Appellant would be transferred to TDCJ or released on parole.[8] The letter states in part,

[Appellant] will not complete his statutory minimum period of confinement of three years for this offense[] by the time of his 19th birthday, which will occur on January 26, 2016. . . . According to Section 245.051(c) of the Human Resources Code, "If a child is committed to the department under a determinate sentence under Section 54.04(d)(3), Section 54.04(m), or Section 54.05(f), Family Code, the department may not release the child under supervision without approval of the juvenile court that entered the order of commitment unless the child has served at least:. . . . 3 years, if the child was sentenced to commitment for conduct constituting a felony of the first degree."[9]

         The trial court conducted an evidentiary hearing to determine whether Appellant should be transferred to TDCJ. The State offered the testimony and report of Leonard Cucolo, the TJJD court liaison, and numerous documentary exhibits. Appellant offered the testimony of his grandfather, his brother, and his aunt.

         Cucolo explained that Appellant had been confined in TJJD for twenty-three months. During that time period, Appellant had 123 incidents on record, and ninety-eight of those incidents resulted in referrals to the security unit, where Appellant had been admitted thirty-three times. Appellant had committed over twenty major rule violations, [10] including eight assaults involving offensive contact with other youth, three assaults involving offensive contact against staff, four fights not resulting in bodily injury, and twelve instances of aggressive misconduct involving verbally threatening others. From January 2016 through June 2016, Appellant had six Level II Hearings for incidents that included exposure, [11] "[a]ssault [u]nnecessary [p]hysical [c]ontact, " and tattooing; during those hearings, five of the six incidents alleged were proven.

         Appellant's progress in TJJD's general rehabilitation program was assessed monthly and was measured by his work through stages of programming, called stage assessments. The stages are designated from 1 to 4 with a fifth and final stage of "Youth Empowerment Status" ("YES"), in which a youth is actively preparing to be released into the community on parole. A report prepared by Cucolo summarized Appellant's progress at TJJD:

[Appellant] has had difficulty making progress in the general program. He promoted to Stage 2 in August 2015 and Stage 3 in April 2016. As the result of Level II Hearings on April 29, 2016 and May 20, 2016[, ] he was demoted to Stage 2 and to Stage 1 respectively. [Appellant] regained Stage 2 in July 2016, Stage 3 in August 2016[, ] and was recently promoted to Stage 4 on November 1, 2016. Unfortunately, his attainment of Stage 4 is questionable. As recently as November 9, 2016, [Appellant] was placed in the Security Unit for threatening others.

         Cucolo also testified concerning psychological evaluations performed on Appellant by Amy Kegel in August 2016 and by Dr. Marks in December 2016. Kegel's report indicated that Appellant struggled with his responsibility for committing the offense and with understanding the impact of the offense on the victims. Kegel determined that Appellant needed additional time in treatment programs and was not ready to be paroled. Dr. Marks's report, prepared four months after Kegel's, noted that although Appellant's control over his behavior had improved, he still struggled to accept responsibility for the offense and to empathize with the victims of it. Because Appellant had successfully completed the Alcohol and Other Drug (AOD) program in September 2015 and was about to successfully complete the Violent Offender Program, Dr. Marks believed Appellant could be successfully paroled if certain parole conditions were imposed.

         While in TJJD, Appellant had earned a Certificate of Training in Welding 1, had obtained his GED, and had held a job. Although Appellant required prescriptions for various medications, Cucolo testified that if Appellant were released to parole, a condition would be ...


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