COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00367-CV
IN THE MATTER OF M.J.-M.
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FROM THE COUNTY COURT AT LAW OF COOKE COUNTY
TRIAL COURT NO. JV612-12
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MEMORANDUM OPINION1
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I. Introduction
In two points, appellant M.J.-M. appeals the trial court’s order transferring
him from the Texas Juvenile Justice Department (TJJD) to the Texas Department
of Criminal Justice (TDCJ) to complete his determinate ten-year sentence for
1
See Tex. R. App. P. 47.4.
aggravated assault on a public servant while in TJJD’s custody.2 See Tex. Penal
Code Ann. § 22.02(b)(2)(B) (West 2011) (aggravated assault on a public servant
is a first-degree felony); Tex. Fam. Code Ann. § 53.045(a)(6) (West 2014)
(aggravated assault offense is eligible for determinate sentence). We affirm.
II. Factual and Procedural Background
In 2014, after M.J.-M. turned eighteen years old, the State moved to
transfer M.J.-M.’s determinate sentence to TDCJ. At the November 7, 2014
hearing, the State’s sole witness was Leonard Cucolo, TJJD’s court liaison. The
trial court took judicial notice of the court’s file and the TJJD records and
Cucolo’s report without objection. It also admitted without objection Petitioner’s
Exhibit 1, a November 3, 2014 incident report from TJJD that documented an
incident that had occurred four days prior to the transfer hearing wherein M.J.-M.
exposed his penis to female staff members and masturbated in front of them.
M.J.-M. raised no objections during Cucolo’s testimony.
2
M.J.-M. was fourteen years old when he was committed to TJJD in April
2011 after his community supervision was revoked. He pleaded “true” to
committing an aggravated assault on a public servant in 2012 while in TJJD’s
custody (after the State gave notice that it sought a determinate sentence for the
offense). See Tex. Fam. Code Ann. § 54.04(d)(3)(A)(ii) (West 2014) (providing
for possible transfer from TJJD to TDCJ for a term of not more than forty years
for a first-degree felony). M.J.-M.’s stipulation to the evidence reflected that he
struck a TJJD officer in the face while she was supervising the juvenile inmates
in TJJD custody and fractured her cheek bone and the bone around her left eye
(left orbital). Her injuries necessitated medical treatment from an eye specialist
and caused her to miss more than a month of work.
2
Cucolo testified that M.J.-M. met all of the criteria for transfer to TDCJ to
complete his sentence by: committing new felony offenses and Class A
misdemeanors, engaging in chronic disruption, violating twenty-six major rules,
resulting in sixteen Level II hearings, and failing to progress in treatment despite
having been provided with services to help remediate his behavior, including
individual counseling, group counseling, and specialized treatment programs. In
total, the evidence of M.J.-M.’s behavioral history reflected more than 200
documented incidents of misconduct, 131 referrals to the security unit, and 86
security placements.3
Cucolo stated that M.J.-M. was chronically disruptive and engaged in
violent, aggressive behavior with staff and youth, “making it very difficult—an
unsafe environment for the staff, unsafe environment for the kids, and it’s making
it difficult for the other youth that are there for similar offenses, determinate
sentences as well, to engage in the program.” According to Cucolo, M.J.-M. had
continued to engage in serious misconduct, assaults, “major disruption[s] of
facility,” fleeing from apprehension, and exposure, even after he was warned in
February 2014 that his psychological evaluation would be shared with the special
services committee to make a decision about a return to court. Cucolo described
M.J.-M. as a danger to any community to which he might be released.
3
These numbers include misconduct occurring prior to M.J.-M.’s receiving
his determinate sentence.
3
M.J.-M. and his paternal aunt S.M. both testified, seeking leniency, and the
trial court permitted S.M. to testify about hearsay statements over the State’s
objection. During M.J.-M.’s testimony, he admitted that while incarcerated he
had committed unprovoked assaults on other youths on numerous occasions and
agreed that many of his fights and major rule violations were a direct result of
gang violence, either his own fighting for other gang members or his “being run
up on by other members.”4 M.J.-M. said that he was 5’4” tall and that all of his
fights had been with people bigger than him. He stated that if he refused to beat
people up as directed by his gang, there would be consequences, such as being
assaulted himself. After hearing testimony from the State’s sole witness and
M.J.-M. and his aunt, the trial court granted the motion.
III. Discussion
In his two points, M.J.-M. challenges the sufficiency of the evidence to
support the trial court’s finding that he was a threat or danger to himself or others
and complains that the only evidence presented by the State was “unreliable and
non-credible hearsay testimony” in violation of his right to confrontation under the
Sixth Amendment.
In his second point, M.J.-M. asks us to adopt the dissenting opinion in In re
M.P., 220 S.W.3d 99, 115 (Tex. App.—Waco 2007, pet. denied) (Vance, J.,
dissenting) (concluding that a juvenile should be afforded the Sixth Amendment
4
The offense for which M.J.-M. had received the determinate sentence
involved his attempt to get into a gang.
4
confrontation right in the disposition phase of a juvenile proceeding). Doing so
would require a departure from our conclusion in In re S.M., 207 S.W.3d 421,
425 (Tex. App.—Fort Worth 2006, pet. denied), that Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354 (2004), does not apply in juvenile transfer
hearings.5 We decline this invitation.
We review a trial court’s decision to transfer a juvenile under family code
section 54.11 for an abuse of discretion. In re J.M., No. 02-05-00180-CV, 2005
WL 3081648, at *3 (Tex. App.—Fort Worth Nov. 17, 2005, no pet.) (mem. op.). If
some evidence exists to support the trial court’s decision, there is no abuse of
discretion. Id. As set out above, some evidence supports the trial court’s
decision; therefore, we overrule this portion of M.J.-M.’s two points.
5
See S.M., 207 S.W.3d at 425 (concluding that Russeau v. State, 171
S.W.3d 871, 880–81 (Tex. Crim. App. 2005), cert. denied, 548 U.S. 926 (2006)—
which held that the introduction of prison incident and disciplinary reports violated
the Sixth Amendment’s Confrontation Clause—did not apply to juvenile
proceedings because the Confrontation Clause explicitly applies to “criminal
prosecutions,” the reports in Russeau were admitted at the punishment stage of
the defendant’s criminal trial, and a transfer hearing under family code section
54.11 is not a trial because the juvenile is neither being adjudicated nor
sentenced; instead, the transfer hearing is a “second chance hearing” after the
juvenile has already been sentenced to a determinate number of years); see also
In re C.E.C., No. 02-06-00065-CV, 2006 WL 3627134, at *2 (Tex. App.—Fort
Worth Dec. 14, 2006, no pet.) (mem. op.) (“A juvenile . . . has no right of
confrontation at a discretionary transfer hearing. Therefore, the trial court did not
abuse its discretion by overruling appellant’s objection based on the
Confrontation Clause.”); In re D.J., 909 S.W.2d 621, 623 (Tex. App.—Fort Worth
1995, writ dism’d w.o.j.) (“A seeming violation of a juvenile’s Sixth Amendment
right to confrontation is not error at a transfer hearing.”).
5
Because he did not lodge any objections to any of the evidence admitted in
the transfer hearing, M.J.-M. failed to preserve the remainder of his points for our
review. See Tex. R. App. P. 33.1. Therefore, we overrule the remainder of his
two points as unpreserved.
IV. Conclusion
Having overruled both of M.J.-M.’s points, we affirm the trial court’s order
of transfer.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: GARDNER, WALKER, and SUDDERTH, JJ.
DELIVERED: August 6, 2015
6
in the Matter of M.J.-M.
Combined Opinion