In the Matter of P.S., a Juvenile v. the State of Texas

Court of Appeals Tenth Appellate District of Texas 10-24-00198-CV In the Matter of P.S., a Juvenile On appeal from the 272nd District Court of Brazos County, Texas Judge John L. Brick, presiding Trial Court Cause No. 019-J-22 JUSTICE SMITH delivered the opinion of the Court. MEMORANDUM OPINION P.S. appeals the trial court’s order transferring him from the Texas Juvenile Justice Department (TJJD) to the Texas Department of Criminal Justice—Institutional Division (TDCJ) to complete the remainder of his four- year determinate sentence for two counts of aggravated sexual assault of a child. On appeal, P.S. asserts the trial court abused its discretion by transferring him to adult prison rather than releasing him to the Parole Division of TDCJ. We affirm the trial court’s order.  BACKGROUND The State filed a petition on December 30, 2022, alleging that P.S., who was born on June 2, 2005, sexually assaulted his adoptive brother and sister, who were five years old at the time of the 2021 offenses. The State requested the court find that P.S. engaged in delinquent conduct. After an adjudication hearing held May 31, 2023, the court declared P.S. a child engaged in delinquent conduct. The court sentenced him to ten years’ confinement, probated under determinate sentencing for a period of two years. About four months later, the State moved to modify sentencing due to P.S.’s failure to comply with the terms of his probation. On January 5, 2024, the trial court modified the disposition order and placed P.S. in the custody of TJJD for a determinate period of four years. Just prior to P.S.’s nineteenth birthday, TJJD referred him to the trial court for a hearing to determine if he will be transferred to the Institutional Division or the Parole Division of TDCJ. After the hearing, by order dated May 29, 2024, the trial court ordered P.S. transferred to the Institutional Division of TDCJ to serve the remainder of his four-year determinate sentence. P.S. appealed the transfer order. In the Matter of P.S., a Juvenile Page 2  TRANSFER FROM TJJD TO TDCJ In his sole issue, P.S. asserts the trial court abused its discretion by transferring him to adult prison rather than releasing him to the Parole Division of TDCJ. He contends that continuity of sex offender and substance abuse counseling is necessary to reduce the possibility of recidivism. He argues that imprisonment will disrupt and possibly prevent the needed counseling, but parole would provide continuity of counseling. Standard of Review A trial court’s decision to transfer a juvenile from TJJD to TDCJ is reviewed for an abuse of discretion. In re J.D.P., 149 S.W.3d 790, 792 (Tex. App.—Fort Worth 2004, no pet.). We are to review the entire record to determine whether the trial court acted arbitrarily or without reference to any guiding rules and principles. In re N.K.M., 387 S.W.3d 859, 864 (Tex. App.— San Antonio 2012, no pet.). The trial court’s decision will be upheld if the record contains some evidence to support it. Id. Applicable Law After a juvenile with a determinate sentence reaches the age of sixteen, but before reaching the age of nineteen, TJJD may request an order approving the transfer of the juvenile to TDCJ if the sentence has not been completed and the juvenile poses a continuing risk to the community’s welfare. TEX. HUM. In the Matter of P.S., a Juvenile Page 3 RES. CODE ANN. § 244.014(a). The juvenile court must conduct a hearing to make this determination. TEX. FAM. CODE ANN. § 54.11(a). When conducting a transfer hearing, a trial court may consider written reports provided by probation officers, professional consultants, and employees of TJJD, in addition to the testimony of witnesses. Id. § 54.11(d). In making its determination, the court may consider the experiences and character of the person before and after commitment to TJJD, the nature of the penal offense 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 TJJD and the prosecuting attorney, the best interests of the person, and any other relevant factor. Id. § 54.11(k). The court is not obliged to consider all of the factors listed, and it may consider relevant factors not listed. See In re N.K.M., 387 S.W.3d at 864. Additionally, the court can assign differing weights to the factors considered. Id. Analysis Dr. Lis