In the Matter of R.M.--Appeal from 289th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00505-CV
IN THE MATTER OF R.M.
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-JUV-01057
Honorable Carmen Kelsey, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: November 3, 2004

AFFIRMED

R.M. was sentenced to a ten-year determinate sentence after pleading true to aggravated sexual assault of a child. R.M. appeals the trial court's order transferring him from the Texas Youth Commission to the Texas Department of Criminal Justice - Institutional Division. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's order in this memorandum opinion under Texas Rule of Appellate Procedure 47.4 for the following reasons:

1. In his first issue, R.M. contends he was denied due process when TYC did not provide him access to more than 6,000 dormitory log sheets documenting his behavior while in the custody of TYC. When the dormitory log sheets were first discussed at R.M.'s hearing, the court questioned Leonard Cucolo, a TYC official, whether the log sheets could be produced. Cucolo responded that the logs could be produced if defense counsel wanted to review the records. Although defense counsel indicated he wanted to review the records, counsel complained that the court was shifting the burden of reviewing all of the documents onto R.M. Defense counsel, however, never alleged any due process violation at that time. By not raising his due process complaint in the trial court, R.M. waived his right to raise this issue on appeal. See Tex. R. App. P. 33.1(a). Nevertheless, the record reflects R.M. received access to the dormitory logs in question. The record shows the trial court recessed R.M.'s hearing so that R.M. could review the dormitory logs before the court made its final determination regarding R.M.'s transfer to TDCJ. We therefore reject R.M.'s argument that he was denied due process.

2. In his second issue, R.M. contends the trial court erred in permitting Cucolo to testify based on his report summarizing R.M.'s behavior while at TYC. R.M. argues that, because Cucolo did not have personal knowledge of all the information summarized in the report and was not qualified as an expert, his testimony constituted inadmissible hearsay. R.M.'s argument, however, ignores that a transfer/release 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 383, 387 (Tex. App.-Corpus Christi 1996, writ dism'd w.o.j.). The hearing does not need to meet the same stringent due process requirements as a trial in which a person's guilt or innocence is decided. In re J.M.O., 980 S.W.2d 811, 813 (Tex. App.-San Antonio 1998, pet. denied). Therefore, the court is not precluded from considering hearsay testimony at a transfer/release hearing. In re C.D.T., 98 S.W.3d 280, 283 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). We therefore hold the trial court did not err in permitting Cucolo to testify based on his report summarizing R.M.'s behavior while at TYC. See id. (holding juvenile's constitutional rights were not violated by the admission of hearsay evidence).

3. In his third issue, R.M. contends his due process rights were violated because he did not receive adequate notice of his conduct that warranted his transfer to TYC. However, R.M. failed to raise this complaint when the transfer/release hearing began. Because R.M. did not raise his complaint in the trial court, we hold he has waived this contention. See Tex. R. App. P. 33.1(a).

4. In his fourth issue, R.M. contends the conditions of his confinement are cruel and unusual in violation of the Eighth and Fourteenth Amendments of the United States Constitution because he has been denied treatment for his "sexual disease." Again, however, R.M. failed to raise this complaint in the trial court and thus waived his right to raise this issue on appeal. See id. In any event, the record demonstrates that R.M. received treatment for his condition while at TYC through counseling sessions with a psychologist and a resocialization program offered by TYC.

The trial court's judgment is affirmed.

Sarah B. Duncan, Justice