In re N.K.M.

• Decision Date: 07 November 2012
• Docket Number: Nos. 04–12–00204–CV, 04–12–00205–CV.,s. 04–12–00204–CV, 04–12–00205–CV.
• Parties: In the Matter of N.K.M.
• Court: Texas Court of Appeals

387 S.W.3d 859

In the Matter of N.K.M.

Nos. 04–12–00204–CV, 04–12–00205–CV.

Court of Appeals of Texas, San Antonio.

Nov. 7, 2012.

Susan A. Edwards, Law Office of Susan Edwards, San Antonio, TX, for Appellant.

Susan D. Reed, District Attorney, Bexar County, San Antonio, TX, for Appellee.

Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.

OPINION

Opinion by: CATHERINE STONE, Chief Justice.

N.K.M. appeals the trial court's order transferring him from the Texas Juvenile Justice Department to the Texas Department of Criminal Justice. N.K.M. asserts he was denied his due process right to a fair hearing because he must admit guilt, in contravention of his right against self-incrimination, in order to participate in the Capital and Serious Violent Offender Treatment Program. N.K.M. also contends the trial court abused its discretion in ordering his transfer to the Texas Department of Criminal Justice to serve the remainder of his sentence. We affirm the trial court's order.

Background

In 2009, N.K.M. was convicted by a jury of aggravated assault in one incident, and aggravated robbery and aggravated kidnapping in another. The trial court assessed a twenty-year determinate sentence, meaning he entered the Texas Juvenile Justice Department (TJJD) with the possibility of later being transferred to the Texas Department of Criminal Justice (TDCJ) to finish serving his sentence. In March 2012, with N.K.M.'s nineteenth birthday approaching, and upon request by the TJJD, the trial court held a transfer hearing to determine whether N.K.M. should be released on parole or transferred to the TDCJ for the remainder of his sentence. One witness was called by the State to testify at the hearing, and four witnesses were called by N.K.M. to testify.

The State called Leonard Cucolo, the court liaison for the TJJD, who conveyed the TJJD's recommendation that N.K.M. be transferred to the TDCJ to complete his sentence. Cucolo testified N.K.M. had some successes while at the TJJD, including completion of an alcohol and drug program as well as Aggression Replacement Training (ART). He also stated N.K.M. exhibited good behavior in the eight months prior to the hearing. However, when asked about his behavior over the duration of his time at TJJD, Cucolo explained that N.K.M. had 35 documented incidents, including bad behavior and possessionof contraband, money, and prohibited pills.

Despite these incidents of bad conduct, Cucolo maintained the reason the TJJD was recommending N.K.M. be transferred to the TDCJ was because he had not completed the Capital and Serious Violent Offender Treatment Program (Offender Program). The TJJD's concern about not completing the Offender Program, as attested by Cucolo, was that N.K.M.'s primary treatment need and its associated risk factors had not been sufficiently addressed. Although N.K.M. did attend orientation for the Offender Program, Cucolo stated N.K.M. was unable to enter the Offender Program because he maintains his innocence and because of “his denial of his offense throughout his stay.” Completion of the Offender Program is a requirement for the TJJD to recommend that N.K.M. be released on parole.

On cross-examination, Cucolo testified that thirty-five incidents is not a significant number of incidents; however, it is the nature of the incidents that may be important. Additionally, Cucolo acknowledged the existence of a waiver process for the Offender Program, but stated that N.K.M. was not eligible for a waiver because of his classification.¹ Cucolo also submitted to the court a report containing the information about which he testified as well as other more detailed information.

N.K.M. first called Stephen Kennedy, a case manager for the alcohol and drug program that N.K.M. completed. Kennedy stated N.K.M. attended every session and was on time, respectful, and focused on changing his life and doing better. He also testified N.K.M. had grown emotionally and had matured a lot. Moreover, Kennedy asserted his belief N.K.M. internalized the lessons and could likely use them in his future setting. On cross-examination, Kennedy stated N.K.M. had a moderate alcohol and drug problem when he entered TJJD, but he recognized this was not N.K.M.'s primary treatment need, to which he could not speak.

N.K.M. next called Bernie Scott, Jr., N.K.M.'s caseworker at the TJJD for approximately the past nine months. Scott reiterated that N.K.M. completed ART. He also agreed that some offenders can seek a waiver to substitute ART for the Offender Program, but he was not aware whether N.K.M. had applied for a waiver. When asked about disturbances between the offenders, Scott stated he did not know whether N.K.M. was involved in past disturbances (before he was N.K.M.'s caseworker), but he knew N.K.M. was not involved in the most recent disturbance involving seventy to eighty of the almost three hundred juveniles at the facility. Furthermore, Scott reported that N.K.M. participated and did very well in programs designed to teach offenders to respect each other's differences. Scott also testified that N.K.M. wanted to get his education and acquire vocational skills. Additionally, Scott stated that daily reports from N.K.M's instructors were usually positive with good remarks. Finally, Scott described N.K.M. as respectful and polite, and said he felt N.K.M. could continue to grow and develop if paroled.

On cross-examination, Scott acknowledged N.K.M.'s involvement in an earlier disturbance where some offenders vandalizedthe dorm and N.K.M., specifically, yelled profanities at the staff and resisted security. On redirect examination, Scott established that the disturbance mentioned on cross-examination was only two months after N.K.M.'s arrival and that no one was injured, and he reiterated that N.K.M. did not participate in the recent “big” incident involving fights between gang members. Scott also echoed that the sole reason for N.K.M's exclusion from the Offender Program was because he would not admit guilt.

The third witness N.K.M. called was Dr. Steven Brownlow, a psychologist with the TJJD, who appeared in place of N.K.M.'s psychologist, Dr. Varnado. ² Dr. Brownlow explained that he interacts mostly with people who are causing trouble or having psychological distress, and that because N.K.M. was not one of those persons, he did not personally know N.K.M. Dr. Varnado prepared a forensic evaluation, attested to by Dr. Brownlow, containing recommendations for N.K.M. if he was placed on parole by the trial court. These recommendations included super intensive supervision, counseling, forty hours of work or school per week, a referral to the department of mental health for his psychiatric problems, and reassessment every twelve months.

On cross-examination, Dr. Brownlow agreed that N.K.M. had not completed the Offender Program and that for the TJJD to address his risk factors and make a recommendation for parole, the offender must admit what they have done so the doctors can identify and understand the offender's risk factors. Dr. Brownlow also admitted knowing of N.K.M.'s prior adjudications for possession of a dangerous drug, fighting, and possession of tobacco, as well as a prior arrest for delivery of a dangerous drug. There was also evidence N.K.M. had shoplifted, vandalized an abandoned house, and sold other illegal drugs. Moreover, after acknowledging N.K.M. had admitted gang affiliation then subsequently denied it, Dr. Brownlow stated his suspicions would be raised by N.K.M.'s contradicting statements. Dr. Brownlow also testified Dr. Varnado's findings were that N.K.M. had extreme defensiveness, extreme use of denial, and poor insight, and that N.K.M. was a moderate risk to the community.

On redirect, Dr. Brownlow admitted N.K.M.'s priors were about five years before the hearing, N.K.M. was young and immature at that time, juveniles change behaviors quickly, and N.K.M. has learned and grown since participating in programs at the TJJD. Dr. Brownlow also conceded to the “proverbial catch–22” in which N.K.M. was placed by having to admit guilt in order to enter the Offender Program, and possibly attain a parole recommendation, while also pursuing an appeal of his conviction. Moreover, recognizing N.K.M.'s participation in ART, Dr. Brownlow explained the program's high level of empirical support nationally. On re-cross examination, Dr. Brownlow expressed concern that N.K.M. was denying his role in the offenses even after his conviction was affirmed on appeal.

Finally, N.K.M. called his father to testify. Remarking on N.K.M.'s growth over the past three years, his father stated N.K.M. had matured a lot and started to think. When asked about N.K.M.'s involvement in different programs at the TJJD, his father testified they tried to get N.K.M. a waiver for the Offender Program and were under the impression that his involvement in ART could act as a substitute. His father also explained that he and his wife, N.K.M.'s mother, have maintained consistent contact with N.K.M. and have established school and work plans for N.K.M. if he was released on parole, incorporating the welding and customer service skills he attained at the TJJD. He also assured the court they would abide by Dr. Varnado's recommendations.

On cross-examination, N.K.M.'s father reiterated the family's confusion about the waiver, and he stated he did not encourage N.K.M. to participate in the Offender Program against N.K.M.'s will because he felt N.K.M. would have to sacrifice his integrity by lying about his guilt. When asked about a community's concern over releasing someone who was convicted of such serious crimes but denies guilt, N.K.M.'s father stated he could understand some concern but that a conviction could be prejudicial if the person is innocent.

After both sides rested, the parties began closing arguments. During N.K.M.'s closing argument, the presiding judge recognized a member...