NO CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS IN THE MATTER OF A.C., A CHILD

Transcription

1 NO CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS 5th Court of Appeals FILED: 02/21/ :00 Lisa Matz, Clerk IN THE MATTER OF A.C., A CHILD th On appeal from the 305 Judicial District Court of Dallas County, Texas The Honorable Cheryl Lee Shannon, Judge Presiding Cause No. JD X APPELLANT'S BRIEF Counsel of Record: APRIL E. SMITH STATE BAR NO P.O. BOX MESQUITE, TEXAS (FAX) aesmithlaw@tx.rr.com ATTORNEY FOR APPELLANT

2 IDENTITY OF PARTIES AND COUNSEL PARTIES TO THE JUDGMENT: APPELLANT: A.C. APPELLEE: Craig Watkins, Dallas County Criminal District Attorney 133 N. Riverfront Blvd., LB 19 Dallas, TX PRESIDING JUDGE: Cheryl Lee Shannon DEFENSE TRIAL COUNSEL: Melissa Read, Assistant Public Defender TRIAL PROSECUTOR: Erin Melendez APPELLATE COUNSEL: April E. Smith P.O. Box Mesquite, TX i

3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL.... i TABLE OF CONTENTS...i i INDEX OF AUTHORITIES... iii STATEMENT OF THE CASE...1 ISSUE PRESENTED...2 THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING APPELLANT TRANSFERRED TO TDCJ TO COMPLETE THE REMAINDER OF HER SENTENCE. STATEMENT OF THE FACTS...2 SUMMARY OF THE ARGUMENT....4 ISSUE PRESENTED, RESTATED....5 PRAYER...10 CERTIFICATE OF SERVICE ii

4 INDEX OF AUTHORITIES CASES PAGE In re J.M.O., 980 S.W.2d 811 (Tex. App. San Antonio 1998, pet. denied) In re R.G., st 994 S.W.2d 309 (Tex. App. Houston [1 Dist.] 1999, pet. denied) K.L.M. v. State, 881 S.W.2d 80 (Tex. App. Dallas 1994, no writ) , 6 STATUTES TEX. FAM. CODE ANN (Vernon 2007)...1 T EX. FAM. CODE ANN (Vernon 2009)...1, 5 TEX. FAM. CODE ANN (d) (Vernon 2009)....5 T EX. FAM. CODE ANN (i) (Vernon 2009)...6 T EX. FAM. CODE ANN (k) (Vernon 2009)....6 T EX. HUM. RES. CODE ANN (a) (Vernon 2003)...5 iii

5 TO THE HONORABLE COURT OF APPEALS: COMES NOW, A.C., Appellant, and respectfully submits this brief urging error from a transfer/release hearing conducted pursuant to Texas Family Code Section STATEMENT OF THE CASE On October 6, 2009, a Petition was filed alleging that A.C. was a delinquent child because she had committed the offense of aggravated robbery. (CR: 31-32). The Petition was approved by the grand jury for a determinate sentence as provided for by TEX. FAM. CODE ANN (Vernon 2007). (CR: 56). A.C. received a five year determinate sentence with placement at the Texas Youth Commission. (CR: 73-76). However, the sentence was probated and she was transferred to the Rockdale Regional Juvenile Justice Center. (CR: 74-75). The judgment was signed on November 9, (CR: 76). On June 7, 2010, a Motion to Modify Disposition was filed alleging that A.C. had failed to obey all the rules of placement at the Rockdale Regional Juvenile Justice Center. (CR: 82-83). A.C. entered a plea of true to this allegation and was sentenced to confinement in the Texas Youth Commission for a determinate sentence of five years. (CR: ). The judgment was signed on August 6, (CR: 107). Subsequently, after a transfer/release hearing conducted pursuant to TEX. FAM. CODE ANN (Vernon 2009), A.C. was ordered to continue serving her determinate sentence in the Texas Department of Criminal Justice - Institutional Division. (CR: ). The 1

6 judgment was signed September 26, (CR: 122). Notice of Appeal was timely filed. (CR: ). ISSUE PRESENTED THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING APPELLANT TRANSFERRED TO TDCJ TO COMPLETE THE REMAINDER OF HER SENTENCE. STATEMENT OF THE FACTS Leonard Cucolo, Court Liaison for the Texas Youth Commission (hereinafter TYC ), testified that TYC officials recommended that A.C. be transferred to adult prison to complete the remainder of her five year determinate sentence. (RR-2: 7, 11). A.C. received her sentence when it was found that she and two adult accomplices beat up a woman and fled in the woman s car. (RR-2: 12-13). When the woman tried to hang on to the car door, the 1 person driving the car ran over her several times. (RR-2: 13). Due to the nature of the case, TYC assessed a minimum period of confinement of three years. (RR-2: 13). This means that A.C. would have to be confined to TYC for three years before she would be considered for parole. (RR-2: 13). However, due to her age, A.C. was unable to complete this term prior to her nineteenth birthday. (RR-2: 14; CR: 110, 116). Crystal Ortiz, the complaint, testified that she did not recall much of the attack because she was knocked unconscious. (RR-2: 33-34). Other people identified A.C. as the 1 Cucolo testified that A.C. was the driver, but the complainant was unable to say who was driving the car. (RR- 2: 33-34, 41). 2

7 person who got in the driver s seat of Ortiz s car; however, she could not identify the driver. (RR-2: 34, 41). She was told that she held onto the car window and was dragged when the driver accelerated. (RR-2: 34). Ortiz had to drop out of college due to her injuries. (RR-2: 36-37). For about six months after the incident, she was afraid of crowds and would not go anywhere alone. (RR-2: 37-38). She wanted A.C. to be in prison for as long as possible so that someone else does not suffer like she has. (RR-2: 39). Princella Pruitt, A.C. s grandmother, testified that she participated in the conferences regarding whether A.C. would be released onto parole or transferred to adult prison. (RR-2: 43). Today at the hearing was the first time she learned that TYC was recommending that A.C. be transferred to adult prison. (RR-2: 44). Previously, TYC had indicated that A.C. was doing well and was only having minor problems. (RR-2: 45). A.C. will be able to live with Princella if released from TYC. (RR-2: 45). Princella will work with mental illness providers to ensure that A.C. continues taking her prescribed medication (for bi-polar disorder) and that she receives counseling and anger management classes. (RR-2: 46, 47). A.C. plans to return to school and obtain a high school diploma rather than a GED. (RR-2: 47). Princella believes that A.C. will follow the rules and not get in any trouble if released onto parole. (RR-2: 47-48). A.C. is remorseful about what happened to Ortiz and has written her a letter of apology. (RR-2: 47-48). A.C. testified that she would like to be released onto parole so that she can return to high school and obtain her diploma. (RR-2: 61-62). She would like to be an adoption 3

8 counselor so that she could help other children. (RR-2: 62). She would rather obtain a diploma than a GED. (RR-2: 70). Prior to the transfer/release hearing, she thought that TYC was recommending she be paroled. (RR-2: 62). Her case manager and her grandmother set up programs for her to participate in while she is on parole. (RR-2: 62). She has learned tools at TYC to make her stop and think before acting and to have self-control. (RR-2: 62). She will use those tools to stay out of trouble. (RR-2: 62-63). She is sorry for what Ortiz has been through and will never do that to another person. (RR-2: 63). Her behavior at TYC has improved over the past seven months. (RR-2: 64). At the review hearing in July at TYC, she was told that TYC was recommending she be paroled. (RR-2: 68). SUMMARY OF THE ARGUMENT Due to her age, A.C. was unable to complete the minimum period of confinement established by the Texas Youth Commission prior to her nineteenth birthday. Thus, TYC requested a transfer/release hearing. While A.C. had difficulties at TYC, she did exhibit progress, especially during the seven months preceding the transfer/release hearing. A.C. obtained credits toward her high school diploma and took her GED test. She successfully completed the Capital Offender Program and several other programs while at TYC. A.C. suffers from bi-polar disorder. Thus, based on all of the evidence presented, the trial court abused its discretion in ordering that A.C. be transferred to TDCJ to complete the remainder of her sentence. 4

9 ISSUE PRESENTED, RESTATED THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING APPELLANT TRANSFERRED TO TDCJ TO COMPLETE THE REMAINDER OF HER SENTENCE. Standard of Review ARGUMENTS AND AUTHORITIES The trial court s decision whether to transfer a child from the custody of TYC to TDCJ is reviewed using an abuse of discretion standard. In re J.M.O., 980 S.W.2d 811, (Tex. App. San Antonio 1998, pet. denied); K.L.M. v. State, 881 S.W.2d 80, 84 (Tex. App. Dallas 1994, no writ). The entire record is reviewed to determine whether the trial court acted without reference to any guiding rules and principles. K.L.M. 881 S.W.2d at 84. The trial court s decision may not be reversed because the appellate court disagrees with that decision, so long as the trial court acted within its discretionary authority. In re R.G., 994 st S.W.2d 309, 312 (Tex. App. Houston [1 Dist.] 1999, pet. denied). Other Relevant Authorities When a juvenile is given a determinate sentence, upon TYC s request to transfer the child to TDCJ, the trial court is required to hold a hearing. TEX. FAM. CODE ANN (Vernon 2009); TEX. HUM. RES. CODE ANN (a) (Vernon 2003). At the transfer hearing, the trial court may consider written reports from probation officers, professional court employees, professional consultants, or employees of the Texas Youth Commission, in addition to the testimony of witnesses. TEX. FAM. CODE ANN (d) (Vernon 2009). 5

10 At the conclusion of the hearing, the trial court may order the return of the juvenile to TYC or the transfer of the juvenile into the custody of TDCJ for completion of the sentence. TEX. FAM. CODE ANN (i) (Vernon 2009). In evaluating the evidence and deciding whether to transfer a juvenile to TDCJ, 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 that the person was found to have committed and the manner in which the offense 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 recommendations of TYC and the prosecuting attorney; (6) the best interests of the person; and (7) any other relevant factor. TEX. FAM. CODE ANN (k) (Vernon 2009). Within its discretion, the trial court may assign different weights to the factors it considers, and the court need not consider every factor. R.G., 994 S.W.2d at 312. Application to the Instant Case The underlying offense was committed when A.C. was 16 years old. (CR: 31) (indicating birth date of 10/17/92 and offense date of 9/28/09). The two co-defendants were adults. (RR-2: 12). Cucolo mistakenly testified that A.C. was admitted to TYC upon 2 adjudication for two offenses of aggravated robbery. (RR-2: 11). A.C. was only adjudicated for one offense of aggravated robbery. (CR: 31-32; 73-76). 2 This testimony may refer to the fact that A.C. was adjudicated for the offense of aggravated robbery and subsequently adjudicated for a probation violation which is considered a separate offense by TYC. (CR: 116). 6

11 Cucolo characterized A.C. s behavior at TYC as poor. (RR-2: 15). During her 13 month stay at TYC, A.C. had 36 incidents of misconduct; however, only three of the incidents involved assaultive behavior. (RR-2: 11, 15; CR: 117). She was admitted to the security section 19 times. (RR-2: 15; CR: 117). She participated in a major disruption. (RR- 2: 16). A.C. is defiant regarding rules and disruptive and argumentative with staff. (RR-2: 16; CR: 118). She has demonstrated suicidal behaviors since her July review hearing at TYC. (RR-2: 16; CR: 118). Cucolo also characterized A.C. s academic performance as poor. (RR-2: 17). She refused to take her GED until a week before the transfer/release hearing. (RR-2: 17). A.C., however, stated that she did not refuse to take the GED, but waited until she was prepared for it, and testified that she would rather have a high school diploma. (RR-2: 17, 47, 61-62, 69-70). A.C. also obtained 10 credits toward her high school diploma. (RR-2: 21). Cucolo acknowledged that A.C. has had periods of good behavior; however, she had not sustained that behavior or shown consistent improvement. (RR-2: 18). A.C. successfully completed the Aggression Replacement Training Group, the Trauma Resolution Group, alcohol and other drug-intensive short-term services. (RR-2: 24-25). A.C. is participating in the Capital Offenders program. (RR-2: 25). Were it not for her age, TYC would continue working with her. (RR-2: 25). The only reason for the request for a transfer/release hearing was because A.C. was aging out of the TYC system. (RR-2: 26; CR: 110, 116). 7

12 In a psychological exam completed in May 2011, Dr. Burke, the psychologist who provided individual and group therapy to A.C., indicated that A.C. had maintained significant periods of progress during the previous three months, had maintained primarily positive behavior and she continued to make satisfactory progress in her individual and group programs. (RR-2: 21-22; CR: 117). Dr. Burke also noted that A.C. had completed two stages and was making steady progress toward completing the next stage and that, based on this progress, he believed she could complete the Capital Offender program prior to her release. (CR: 117). A.C. has not been referred for any rules violations (Level II) hearings since January 2011 (an eight month period). (RR-2: 22-23; CR: 118). Prior to that, she had four Level II hearings. (RR-2: 22; CR: ). The ultimate decision regarding whether to recommend transfer to adult prison or release onto parole is made by the executive director of TYC. (RR-2: 29). Among the professionals on A.C. s treatment team, some believed that release onto parole was appropriate for her. (RR-2: 29-30). Conclusion While A.C. had some behavioral issues at TYC, during the eight months preceding the psychological report, she had not been reported for any rule violation (Level II) hearings. There was no testimony that A.C. had been referred for any rule violation hearings after completion of the psychological report in May (RR-2: 27). The only testimony was that she had continued to demonstrate behaviors that had caused concern regarding her ability 8

13 to re-enter society. (RR-2: 28). Were it not for A.C. s age, TYC would have been willing to continue working with her. However, due to her age, she was unable to complete her minimum period of confinement as established by TYC prior to reaching her nineteenth birthday. Thus, TYC requested the transfer/release hearing. Prior to the July staffing at TYC, the recommendation was for A.C. to be released onto parole. A parole officer visited A.C. s grandmother s house in preparation for A.C. s release onto parole. (RR-2: 44). A.C. s case manager and her grandmother set up programs for A.C. to participate in upon her release onto parole which would have allowed her to continue counseling and would have ensured she remained compliant with her bi-polar medication. However, the TYC executive director recommended that A.C. be transferred to adult prison despite the fact that some members of A.C. s treatment team recommended that she be paroled. Based on a thorough review of the record, the trial court abused its discretion in ordering that A.C. be transferred to TDCJ to complete the remainder of her sentence. The record reflects that A.C. had made progress prior to the transfer/release hearing which indicated a release onto parole was the proper result in this case. Thus, the case should be reversed and remanded for a new transfer hearing. 9

14 PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that the case will be reversed and that she be returned to TYC to complete the remainder of her sentence or paroled from TYC. Respectfully submitted, APRIL E. SMITH STATE BAR NO P.O. BOX MESQUITE, TEXAS (Fax) CERTIFICATE OF SERVICE I hereby certify that a copy of this brief has been served on Craig Watkins, Dallas County Criminal District Attorney, 133 N. Riverfront Blvd., LB-19, Dallas, Texas , by fax and to Michael Casillas, Chief of the Appellate Division, at michael.casillas@dallascounty.org on February 21, APRIL E. SMITH 10

15 APPENDIX 1 TRIAL COURT'S JUDGMENT ORDER TO TRANSFER TO THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE SIGNED SEPTEMBER 24, 2011

16

17