In re of W.S.
| Decision Date | 02 March 2023 |
| Docket Number | 02-22-00323-CV |
| Parties | In the Matter of W.S. |
| Court | Texas Court of Appeals |
On Appeal from the 323rd District Court Tarrant County, Texas Trial Court No. 323-114792-20
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Wade Birdwell Justice.
Appellant W.S. appeals the juvenile court's order transferring him from the Texas Juvenile Justice Department (Juvenile Department) to the Institutional Division of the Texas Department of Criminal Justice (Criminal Department). See Tex. Fam. Code Ann. § 56.01. In a single issue, W.S. argues that the juvenile court abused its discretion by transferring him to the Criminal Department to complete his sentence instead of releasing him to the parole board. We hold that the juvenile court did not abuse its discretion and affirm its transfer order.
In November 2020, a grand jury approved the State's petition seeking a determinate sentence against W.S. The State alleged that in January 2020, when W.S. was sixteen years old, W.S had engaged in delinquent conduct by committing the offenses of aggravated assault causing serious bodily injury and aggravated assault with a deadly weapon.[1]
In March 2021, as part of a plea agreement, the juvenile court adjudicated W.S. of having engaged in delinquent conduct by committing the offense of aggravated assault with a deadly weapon, a second-degree felony, see Tex. Penal Code Ann. § 22.02(a)(2), (b), and ordered W.S. to serve a term of six years in "the [Juvenile Department] with a possible transfer to the [Criminal Department]." By March 2021, W.S. was already seventeen-and-a-half years old.
In June 2022, the Juvenile Department informed the juvenile court that W.S. would not complete his statutory minimum period of two years' confinement for his offense by his nineteenth birthday (which would occur in August 2022), and was, thus, subject to a hearing to determine whether he should be "transferred to the Institutional Division or released to the Parole Division of the [Criminal Department]." See Tex. Fam. Code Ann. § 54.11. Under Section 245.051(c)(3) of the Texas Human Resources Code, the Juvenile Department was not authorized to release W.S. "under supervision" without the juvenile court's approval because W.S. had not yet served a minimum two years for a second-degree felony. See Tex. Hum. Res. Code Ann. § 245.051(c)(3).
In addition to releasing W.S. to the Parole Division of the Criminal Department, the juvenile court also had the authority to transfer W.S. to the Institutional Division of the Criminal Department to complete his sentence provided W.S.'s conduct indicated that "the welfare of the community require[d] the transfer." See id. § 244.014(a). As the testimony later showed, however, the Juvenile Department was effectively asking the juvenile court for approval to release W.S. on parole. See id. § 245.051(d).
In August 2022, after a hearing, the juvenile court ordered W.S. to "be immediately . . . transferred to the care, custody[,] and control of the [Criminal Department] in accordance with the provisions of Section[] 245.151(c) of the Texas Human Resources Code, and [S]ection 54.11 of the Texas Family Code, therein to serve the remainder of his sentence as required by law." See Tex. Fam. Code Ann. § 54.11(i)(2); Tex. Hum. Res. Code Ann. § 245.151(c). W.S. appealed.
When the Juvenile Department refers a juvenile who is serving a determinate sentence to a juvenile court for a possible transfer to the Criminal Department, the juvenile court must set a hearing. Tex. Fam. Code Ann. § 54.11(a). In W.S.'s case, at the conclusion of the hearing, the juvenile court could either (1) order the juvenile returned to the Juvenile Department or (2) transfer the juvenile to the Criminal Department to complete his sentence. See id. § 54.11(i).
But if the juvenile court ordered the juvenile returned to the Juvenile Department, it could do so with or without approval to release him under supervision. See id. § 54.11(j). Thus, if the juvenile court ordered him to complete his sentence in the Criminal Department, the Juvenile Department would later transfer him to the Institutional Division of the Criminal Department. See Tex. Hum. Res. Code Ann. § 245.151(c). But if the juvenile court approved release on parole, on his nineteenth birthday, the Juvenile Department would transfer him to the Parole Division of the Criminal Department. See id. § 245.151(e).
Tex. Fam. Code Ann. § 54.11(k); see In re A.M., No. 02-17-00029-CV, 2017 WL 2812452, at *4-5 (Tex. App.-Fort Worth June 29, 2017, no pet.) (mem. op.); In re H.C., No. 02-15-00149-CV, 2016 WL 354297, at *2 (Tex. App.-Fort Worth Jan. 28, 2016, no pet.) (mem. op.) ( that under Section 54.11(k), "the trial court may assign different weights to the factors it considers, and the court need not consider every factor").
We review a trial court's decision to transfer a juvenile from the Juvenile Department to the Criminal Department for an abuse of discretion. A.M., 2017 WL 2812452, at *5; In re K.Y., 392 S.W.3d 736, 737 (Tex. App.-Dallas 2012, no pet.); In re J.D.P., 149 S.W.3d 790, 792 (Tex. App.-Fort Worth 2004, no pet.). J.D.P., 149 S.W.3d at 792 (citation omitted). An abuse of discretion does not occur when some evidence of substantive and probative character supports the trial court's decision. See A.M., 2017 WL 2812452, at *5; K.Y., 392 S.W.3d at 737.
In W.S.'s brief, his primary argument to support his contention that the juvenile court abused its discretion is that the Juvenile Department itself recommended not transferring him to the Criminal Department to complete his sentence. Instead, it recommended having him released on parole.
The State acknowledges that some evidence supported parole. But the State adds that "there was unquestionably sufficient evidence in the record to support the trial court's discretion in deciding to transfer [W.S.] to [the Criminal Department]" to complete his sentence.
We agree with the State.
A. Evidence 1. The Master File
At the start of the hearing, the juvenile court admitted into evidence the Juvenile Department's master file for W.S. The master file contained a description of W.S.'s underlying offense.
According to the master file, multiple people had "jumped" W.S.'s friend. Two days later, W.S. and his friend saw the victim-a peer W.S. claimed was involved in the "jumping" of his friend-outside a gas station.
The victim, however, had not participated in the "jumping" but had, instead, associated with the youths who had "jumped" W.S.'s friend. Nevertheless, W.S.'s friend approached the victim, started a fight with him, and stabbed him multiple times with a knife. The victim ran behind the gas station, where W.S. and his friend pursued him and continued the assault.
W.S. purportedly brandished a handgun and shot at the victim four times. How many bullets struck the victim was not clear: "Records do not note the number of gunshot wounds suffered by the victim, but it is noted that the victim was shot in the leg and was also observed doubled over in video after a shot went off, possibly indicating he was additionally shot in the abdomen."
After the assault, W.S. and his friend absconded to Mexico, where they remained for seven months. Authorities arrested W.S. when he attempted to re-enter the United States.
2. The Juvenile and Criminal Departments' Court Liaison
The State called as its only witness Maricela Amador, who was a court liaison for the Juvenile and Criminal Departments. She acknowledged that W.S. had been admitted to the Juvenile Department for the offense of aggravated assault with a deadly weapon for which he had received a six-year determinate sentence and that W.S. had been in the Juvenile Department's custody for about seventeen months. The issue, Amador explained, was that the minimum confinement period in the Juvenile Department for a second-degree felony was twenty-four months.
Amador estimated that W.S., while at the Juvenile Department, had about forty incidents on record. Of those, three rose to the level of requiring Level II hearings.[2]
The most recent incident was in October 2021; it was for stealing an iPad. As a result of the Level II hearing, W.S. was demoted to Stage 1 and had his privileges suspended.[3]
W.S.'s second Level II hearing was in July 2021. On that occasion, he had participated in a food fight in the cafeteria that had caused a major campus disruption.
The third and oldest incident occurred in June 2021. W.S. had refused to go to...
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