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In re B.J.H.B.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 14, 2019

IN THE MATTER OF B.J.H.B.

          On appeal from the County Court at Law of San Patricio County, Texas.

          Before Justices Benavides, Longoria, and Perkes

          MEMORANDUM OPINION

          GREGORY T. PERKES JUSTICE

         This case involves an appeal from a juvenile court's order requiring appellant B.J.H.B. to non-publicly register as a sex offender. See Tex. Code Crim. Proc. art. 62.357(b) (authorizing appeal from an order requiring sex offender registration). By two issues, appellant argues: (1) the evidence was legally and factually insufficient to support the trial court's finding; and (2) the trial court erred in failing to allow appellant to present evidence.[1] We reverse.

         I. Background

         B.J.H.B. was born on March 18, 2000. On September 14, 2016, when B.J.H.B. was sixteen years old, the State filed its original petition alleging that he had engaged in delinquent conduct by committing the felony offense of sexual assault of a child when he was fourteen years old.[2] See Tex. Penal Code § 22.011(a)(2)(A).

         On October 17, 2016, the trial court, sitting as a juvenile court, signed an adjudication order, finding that B.J.H.B. had engaged in delinquent conduct. [3] The juvenile court placed B.J.H.B. on probation for two years, subject to various conditions, and deferred a finding of whether sex offender registration would be required in this case. See Tex. Code Crim. Proc. art. 62.352(b)(1) (allowing the juvenile court to defer a registration decision).

         B.J.H.B. was required, in part, to: (1) participate in intensive supervision probation; (2) abstain from any contact with the complaining witness[4]; (3) maintain a minimum grade of seventy in each class in school; (4) submit to random urinalysis testing; (5) perform eighty hours of community service; (6) complete the Teen Intervention and Prevention Program, Parents and Children Together Program, and Aggression Replacement Training; (7) attend counseling; (8) undergo a polygraph examination; and (9) abide by a curfew and all GPS monitoring restraints.

         Following the State's submitted motion and request for judgment "requiring [B.J.H.B.] to register as a sex offender or excuse registration," the court held a registration determination hearing on March 1, 2018. See Tex. Code Crim. Proc. art. 62.351(b) (providing that the burden is on the juvenile at a registration determination hearing).

         Although the juvenile carried the burden, the State was asked to proceed first. See id. Gloria Tanguma, B.J.H.B.'s juvenile probation officer, testified that B.J.H.B. had been placed at Pegasus School, a school for adjudicated juveniles, and B.J.H.B. had been successfully discharged from the program. B.J.H.B. completed all of his programs and therapy, passed his classes and a polygraph exam, reported as required, and was overall "doing very well." There were no probationary violations reported or concerns of reoffending risks articulated. However, Taguma testified it was probation's policy to "always recommend that [juvenile offenders] be registered as sex offenders" irrespective of a juvenile's individual successes.

         The State also called B.J.H.B. to testify. B.J.H.B., seventeen years old and living in a foster home with other adjudicated sex offenders at the time of the hearing, briefly testified to his own history of sexual and physical abuse.[5] B.J.H.B. also spoke about his progress and hopes to voluntarily remain in foster care after he turned eighteen. B.J.H.B. said he understood that remaining in foster care would subject him to the Department's rules and continued monitoring long after his probation expired, [6] but he reasoned that this decision would provide him with the structure and financial support that he would not otherwise have to pursue a "career as a welder" and "get [his] associate's degree."

         The court then asked B.J.H.B. to discuss the underlying offense and victim, inquiring into what B.J.H.B. disclosed during the polygraph exam and whether there were any other children that B.J.H.B. had reported "sexual contact with." B.J.H.B. testified that he had inappropriately touched twenty-two other children. According to B.J.H.B., the other children were "the same age" as he was, and the "sexual contact" occurred when B.J.H.B. was between the ages of eight and ten. B.J.H.B. reiterated that his therapy has had a "positive impact in [his] life," changing him "mentally and emotionally," and he urged the court to consider a registration exemption.

         B.J.H.B.'s attorney requested to call B.J.H.B.'s caseworker, B.J.H.B.'s mother, and an individual from B.J.H.B.'s current placement at the Burke Center for Youth to testify on B.J.H.B.'s behalf. The juvenile court did not permit testimony from any of B.J.H.B.'s witnesses.

         The State and B.J.H.B.'s attorney provided a joint recommendation, shared by B.J.H.B.'s treatment team, that B.J.H.B. be exempt from registration. The juvenile court maintained, given the number of children that had been "exposed to inappropriate behavior" by B.J.H.B., the court could not "in good conscience" find exemption from registration appropriate. The court ordered ...


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