IN THE MATTER OF J.D.D., A JUVENILE

AFFIRM; Opinion issued November 18, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01252-CV
No. 05-07-01253-CV
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IN THE MATTER OF J.D.D., A JUVENILE
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On Appeal from the 417th Judicial District Court
Collin County, Texas
Trial Court Cause No. 417-70120-05 and 417-70171-05
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MEMORANDUM OPINION
Before Justices Moseley, Richter, and Francis
Opinion By Justice Francis
        In July 2005, the trial court adjudicated J.D.D., then sixteen, a child engaged in delinquent conduct for committing aggravated kidnapping and aggravated assault with a deadly weapon. The trial court committed him to the Texas Youth Commission on concurrent, ten-year determinate sentences with a possible transfer to the Texas Department of Criminal Justice and deferred a finding on sex offender registration.
        Two years later, TYC requested appellant be transferred to TDCJ to complete his sentence. After a hearing, the trial court ordered both the transfer and public registration as a sex offender. In three issues, appellant contends the trial court abused its discretion in ordering the transfer, admitting his TYC records in violation of his right to confrontation under the Sixth Amendment, and ordering him to register as a sex offender. We affirm.         In his first issue, appellant challenges the decision to transfer him to TDCJ. We review the trial court's decision to transfer a juvenile from the TYC to the TDCJ for an abuse of discretion. In re F.D., 245 S.W.3d 110, 113 (Tex. App.-Dallas 2008, no pet. ). When deciding this issue, we review the entire record to determine if the trial court acted without reference to any guiding rules or principles. Id. There is no abuse of discretion if some evidence supports the trial court's decision. Id. We do not substitute our decision for that of the trial court and reverse only if it acted in an unreasonable or arbitrary manner. Id.
        In making its decision, the 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 of the offense or any member of the victim's family, (5) the recommendation 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. Tex. Fam. Code Ann. § 54.11(k) (Vernon Supp. 2008). Evidence of each factor is not required, and the trial court need not consider every factor. In re D.T., 217 S.W.3d 741, 743 (Tex. App.-Dallas 2007, no pet.). Further, the trial court may assign different weights to the factors it considers, and it may consider unlisted but relevant factors. Id.
        Here, the record shows that in February 2005, two McKinney High School girls, M.W. and M.R., were getting into their car parked on the school lot when appellant suddenly opened the door and got into the back seat. He was wearing a toboggan hat and a bandana across his face and was wielding a knife. Appellant ordered M.R. out of the car and ordered M.W. to drive away. M.W. drove across the parking lot but then jumped out of the car and ran away. Appellant briefly gave chase.
        Police arrested appellant that night. He had in his possession the hat, bandana, a knife, a roll of black tape, and a bottle of body oil. Appellant admitted he intended to rape M.W., saying he had visions of raping her with tape covering her mouth and using the oil as a lubricant. Appellant also admitted he had been planning the offense for one to two months and later admitted to TYC caseworkers he had no specific target in mind and just “woke up and thought, 'this is the day, I am going to rape somebody.'” He also admitted he had been carrying the knife for a year because it made him feel powerful.
        At the time of the transfer hearing, appellant had been committed at TYC for twenty-five months. Leonard Cucolo, court liaison for TYC, testified that juveniles are assessed in three different areas - academics, behavior, and correctional therapy. According to Cucolo, appellant did very well academically, earning his G.E.D. and obtaining seventeen and-a-half credits toward his high school dipoloma. He also participated in vocational classes and completed a program that assists youth in developing skills necessary to find a job. Appellant did not, however, fare well in the other two areas.
        With respect to appellant's behavior, Cucolo identified several areas of concern, including appellant's involvement in the gang culture; writing a letter to the administration in which he made offensive sexual requests; writing lyrics derogatory to females that glorified violence; calling a female member of staff “baby”; wanting negative attention from his peers more than focusing on or applying himself in treatment; and having knowledge of negative behavior on his dorm and encouraging others to maintain that culture. Among some of the problems appellant had at TYC, Cucolo said appellant was found in possession of a tattoo machine; found in possession of money used in a black-market enterprise; had pictures of Osama bin Laden in his notebook and said he “admired his leadership,” professed to be a member of a gang, the “Trey Seven Royal Eternal Lords of Comptom”; “tagged” his gang name on the sidewalk; slashed his eyebrows, which TYC construed as a gang insignia; and “picked on” a younger, smaller peer by blacking out his glasses so he could not see.
        Appellant also performed poorly in his correctional therapy. Cucolo said appellant entered the Sexual Behavior Treatment Program in October 2005 and was removed from the program in March 2007. Despite his lengthy time in the program, he made only minimal progress and was discharged as unsuccessful. Additionally, appellant had indicated he did not want to reenter the program. Cucolo said appellant was not motivated and, despite his intellectual ability, would not internalize, practice, or apply what he learned. At one point, he accused his peers of being “weak- minded” for accepting their problems. Cucolo said appellant's actions were a concern because the “whole purpose of the program is to be responsible, not just for yourself but for others and, you know, change the culture within yourself and with others.” Instead, appellant was “espousing delinquent value and maintaining it.”
        With respect to his prior criminal history, appellant had only one prior juvenile incident, a theft. However, he had a past history of misbehavior not reported to the police or known to Collin County workers making prior evaluations. That history included assaultive behavior (beating up a person he described as “faggot”), selling drugs, using alcohol, and watching pornography. In fact, the record shows appellant said he led a “double life” - one in which he went to church, made good grades, belonged to the National Honor Society, and played sports, and the other in which he carried around a knife, planned a rape, and engaged in other criminal behavior. Moreover, he told a counselor that at the time of the instant offense, he was motivated to commit rape because his girlfriend refused to have sex with him. His records also show he admitted he could have sex with willing girls, but they were “not the caliber of girl” he wanted and thought “rape would be an easier way.”         Cucolo testified TYC recommended appellant be transferred to TDCJ. He explained that although appellant had been confined for twenty-five months at the time of the hearing and had been afforded the opportunity of specialized treatment, appellant had continued to engage in delinquent conduct and TYC believed he was a risk to the community.
        Derek Spiller, who had been appellant's case manager for the previous four months, said appellant was likeable and respectful and was not having behavior problems during the time he supervised him. He testified a lot of appellant's bad behavior occurred a year prior to his contact with him. On cross-examination, Spiller testified he knew early on that TYC would seek a transfer hearing in this case and discussed that with appellant. Despite Spiller's relatively positive testimony about appellant, he nevertheless agreed he should be transferred to TDCJ based on the fact he had not completed the sex offender treatment program.
        Appellant's parents also testified at the hearing and asked the trial court to deny the transfer and place appellant on parole. They said appellant could live with them and they would do their best to ensure he got treatment and looked for employment.
        Having reviewed the record, including evidence of appellant's lack of progress at TYC, the seriousness of his crime, and the manner it was committed, we conclude the trial court did not abuse its discretion in ordering appellant's transfer from TYC to TDCJ. Without reiterating all of the evidence, appellant's crime was serious. He pulled a knife on two students and ordered one out of the car so he could take the other and rape her, for no other reason than that she was the “caliber” of female he wanted to have sex with but could not. Once at TYC, he made little progress, acting in negative ways and encouraging others to do the same. Although he had the opportunity for treatment in a specialized sexual behavior treatment program, he made minimal progress over a seventeen-month period and was ultimately removed. He accused other juveniles in that program of being “weak-minded” when they accepted responsibility. Although there was evidence appellant had shown some improvement in the four months before the hearing, the trial court could easily have believed appellant was simply on good behavior long enough to manipulate a result in this case. As the trial court noted when making the decision to transfer, “[appellant] has been completely unwilling to help himself and, therefore, is still to this day a risk to the community and a risk to himself . . . .” The trial court's decision to transfer is firmly grounded in the record. We overrule the first issue.
        In his second issue, appellant contends the trial court abused its discretion in admitting Exhibits 4, 5, 6, and 7 - his TYC records - in violation of his confrontation rights under the Sixth Amendment. In his brief, appellant dedicates three paragraphs to this issue, citing only one case for general legal principles, Crawford v. Washington, 541 U.S. 36 (2004), and offering no analysis. Consequently, we question whether the issue is adequately briefed. See Tex. R. App. P. 38.1. Regardless, this Court has previously concluded an appellant has no right to confrontation at a transfer hearing because it is dispositional rather than adjudicative in nature. See In re F.D., 245 S.W.3d at 213; Alford v State, 806 S.W.2d 581, 582 (Tex. App.-Dallas 1991), aff'd, 866 S.W.2d 619 (Tex. Crim. App. 1993); see also In re S.M., 207 S.W.3d 421, 425 (Tex. App.-Fort Worth 2006, pet. denied); In re D.L., 198 S.W.3d 228, 229-30 (Tex. App.-San Antonio 2006, pet. denied); In re C.D.T., 98 S.W.3d 280, 283 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). We overrule his second issue.
        In his third issue, appellant contends the trial court abused its discretion in ordering him to register as a sex offender. Within this issue, appellant does nothing more than provide law on the standard of review and asserts, without more, that no evidence shows he had re-offended or “done anything characteristic of a sex offender.” Consequently, as in the previous issue, we question whether appellant has adequately briefed this issue. Even assuming he has, no abuse of discretion is shown.
        A trial court's decision to require a juvenile to register as a sex offender is reviewed for an abuse of discretion. In re J.D.G., 141 S.W.3d 319, 321 (Tex. App.-Corpus Christi 2004, no pet.). Article 62.352 of the Texas Code of Criminal Procedure provides the trial court shall exempt a juvenile from registering as a sex offender if it determines that (1) registration would not increase the protection of the public and (2) any potential increase in protection of the public resulting from registration is clearly outweighed by the anticipated substantial harm to the juvenile or his family that would result from registration. Tex. Code Crim. Proc. Ann. art. 62.352 (Vernon 2006). The juvenile bears the burden of persuasion by a preponderance of the evidence to show the two criteria have been met. Id. at art. 62.351(b).
        At the hearing on this issue, the trial court took judicial notice of the evidence admitted at the transfer hearing, which included the circumstances of the offense and the fact appellant fell into the most dangerous category of sex offender because his was a stranger/abduction offense. In addition, Anne Sibley, a Collin County juvenile probation officer, testified she believed registration was necessary in this case because (1) a weapon was used, (2) it was a planned offense in which appellant attempted to isolate one of the girls, (3) the offense was predatory in nature, and (4) appellant was not successful in treatment at TYC. Appellant's mother testified that public registration would make it much more difficult on her son, once he is paroled, and asked the court to consider a law-enforcement only registration. Given all of the evidence in the record, we cannot conclude the trial court abused its discretion in requiring registration in this case. We overrule the third issue.
        We affirm the trial court's orders of transfer in both cases and the order of public registration as a sex offender in Cause No. 05-07-01252-CV.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
071252F.P05