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In re C. Z.

Court of Appeals of Texas, Third District, Austin

May 16, 2018

In the Matter of C. Z.

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. J-31770, HONORABLE RHONDA HURLEY, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Field

          MEMORANDUM OPINION

          SCOTT K. FIELD, JUSTICE

         In June 2015, C.Z., a juvenile at the time, pleaded true to the allegation that he had committed the offense of aggravated robbery with a deadly weapon. See Tex. Penal Code § 29.03(a). The juvenile court accepted his plea and found that the allegation was true. The court assessed a 12-year determinate sentence, and C.Z. was placed in the Travis County Juvenile Probation Department-Local Commitment Program (LCP). See Tex. Fam. Code § 54.04011(c)(2)(a). In July 2017, the LCP referred C.Z. to the juvenile court for transfer to the Texas Department of Criminal Justice-Institutional Division (TDCJ). See Tex. Hum. Res. Code § 152.0016(j)(1). After holding a hearing, the juvenile court signed an order transferring C.Z. to TDCJ to complete his sentence. See Tex. Fam. Code § 54.11(i)(2). C.Z. now appeals, contending in two issues that the juvenile court abused its discretion in ordering him transferred to TDCJ and that he was denied effective assistance of counsel at the adjudication and disposition proceedings. We will affirm the juvenile court's order.

         DISCUSSION

         Transfer Order

         In his first appellate issue, C.Z. contends that the juvenile court abused its discretion in transferring him to TDCJ because the juvenile court's findings of fact and conclusions of law "contain several findings completely devoid of evidentiary support, " and the court's "ultimate decision on transfer . . . is unreasonable and arbitrary and must be reversed."

         If a juvenile court in a county that operates a post-adjudication secure correctional facility finds that a juvenile has engaged in delinquent conduct constituting the felony offense of aggravated robbery, the court may commit the juvenile to a post-adjudication secure correctional facility with a determinate sentence. See id. § 54.04011(a), (b), (c)(2)(A) (providing for commitment to post-adjudication secure correctional facility if juvenile commits an offense listed under Tex. Fam. Code § 53.045); id. § 53.045(a)(7) (listing aggravated robbery as offense eligible for a determinate sentence). Later, before the juvenile becomes 19 years of age, the operator of the post-adjudication secure correctional facility "may refer the child to the juvenile court that entered the order of commitment for approval of the child's transfer to [TDCJ] for confinement if the child has not completed the sentence and . . . the child's conduct, regardless of whether the child was released under supervision through a program established by the board or department, indicates that the welfare of the community requires the transfer . . . ." Tex. Hum. Res. Code § 152.0016(j)(1). The juvenile court must then hold a hearing. See Tex. Fam. Code § 54.11(a). After the hearing, the juvenile court may order that the juvenile be returned to the post-adjudication secure correctional facility or transferred to TDCJ. See id. § 54.11(i).

         The statute provides a non-exclusive list of factors that the juvenile court may consider when deciding whether to transfer the juvenile to TDCJ:

In making a determination under this section, the court may consider the experiences and character of the person before and after commitment to the Texas Juvenile Justice Department or post-adjudication secure correctional facility, the nature of the penal offense that the person was found to have committed and the manner in which the offense was committed, the abilities of the person to contribute to society, the protection of the victim of the offense or any member of the victim's family, the recommendations of the Texas Juvenile Justice Department, county juvenile board, local juvenile probation department, and prosecuting attorney, the best interests of the person, and any other factor relevant to the issue to be decided.

Id. § 54.11(k). Consideration of this non-exclusive list of statutory factors is discretionary. See Tex. Gov't Code § 311.016(1) ("'May' creates discretionary authority or grants permission or a power."). "The juvenile court is not obliged to consider all of the factors listed, and it may consider relevant factors not listed." In re N.G.-D., No. 03-14-00437-CV, 2016 WL 105948, at *3 (Tex. App.-Austin Jan. 8, 2016, no pet.) (mem. op.); see In re N.K.M., 387 S.W.3d 859, 864 (Tex. App.-San Antonio 2012, no pet.); In re J.J., 276 S.W.3d 171, 178 (Tex. App.-Austin 2008, pet. denied). Moreover, the juvenile court can assign different weights to the factors considered. See In re N.K.M., 387 S.W.3d at 864; In re J.J., 276 S.W.3d at 178.

         We review a juvenile court's decision to transfer a juvenile to TDCJ for an abuse of discretion. See In re M.C., 502 S.W.3d 852, 854 (Tex. App.-Texarkana 2016, pet. denied); In re J.J., 276 S.W.3d at 178. "If some evidence exists to support the juvenile court's decision, there is no abuse of discretion." In re D.J., No. 07-16-00013-CV, 2018 WL 828344, at *2 (Tex. App.-Amarillo Feb. 12, 2018, no pet. h.) (mem. op.) (citing In re D.L., 198 S.W.3d 228, 229 (Tex. App.-San Antonio 2006, pet. denied)). "We do not substitute our decision for that of the juvenile court and we reverse its order only if the juvenile court acted in an unreasonable or arbitrary manner." Id. (citing In re J.L.C., 160 S.W.3d 312, 313 (Tex. App.-Dallas 2005, no pet.)).

         C.Z. argues that several of the juvenile court's findings are not supported by the record and that "[t]he cumulative effect of the court's reliance on erroneous fact-finding renders the ultimate transfer decision unreasonable and arbitrary." We begin by noting that C.Z. has not challenged the remainder of the juvenile court's findings, including the following:

• Prior to commitment to LCP, [C.Z.] was previously referred to the juvenile court for twenty-one allegations of delinquent conduct. The first referral ...

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