COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00188-CV
IN THE MATTER OF Z.P.H.
----------
FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
----------
MEMORANDUM OPINION 1
----------
In one point, appellant Z.P.H. contends that the trial court abused its
discretion by requiring him to register as a sex offender after revoking his
probation and committing him to the Texas Juvenile Justice Department.
Because we conclude that no abuse of discretion occurred, we affirm.
Background Facts
In October 2008, the State filed a petition in which it alleged that appellant
had engaged in delinquent conduct a few months earlier. Particularly, the State
1
See Tex. R. App. P. 47.4.
contended that soon before appellant had turned eleven years old, he had
committed aggravated sexual assault by intentionally or knowingly causing
penetration of a female child’s sexual organ, anus, and mouth with his sexual
organ. 2
In April 2009, appellant waived several rights (including his right to a jury
trial) and judicially confessed to the State’s allegation of delinquency. The trial
court found that appellant had committed delinquent conduct. Pursuant to
appellant’s agreement with the State, the court placed him on probation for
twenty-four months. 3 As conditions of the probation, the trial court required
appellant to, among other tasks, commit no further offenses, not possess
pornographic material, complete a sex-offender treatment program, and not have
overnight guests at his house who were under seventeen years old. The trial
court deferred its decision on whether to require appellant to register as a sex
offender. 4
In November 2010, the State filed a petition alleging that appellant had
violated several terms of his probation and asking the trial court to modify the
2
See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i)–(ii), (2)(B) (West Supp.
2013).
3
See Tex. Fam. Code Ann. §§ 51.03(a)(1), 54.03(f), .04(d)(1), (l) (West
Supp. 2013). The trial court explained that it was granting probation because
appellant did not have a history of delinquent conduct and was “of an age that
allow[ed] adequate time to attempt a plan of rehabilitation.”
4
See Tex. Code Crim. Proc. Ann. art. 62.352(b)(1) (West Supp. 2013).
2
probation. 5 In January 2011, when appellant was thirteen years old, the trial
court found that he had violated his probation in five ways (including by viewing
pornography and violating curfew), extended the probation for “not more than 53
months,” and continued to impose several conditions on the probation. The court
again deferred its decision on requiring appellant to register as a sex offender.
In March 2011, the State filed another petition to modify appellant’s
probation, asserting that he had violated it by allowing his fourteen-year-old
girlfriend to spend multiple nights with him in his bedroom and having a sexual
relationship with her. Appellant stipulated to these violations. The trial court
found that he had violated his probation but continued the probation. For a third
time, the court deferred deciding on whether to require appellant to register as a
sex offender. In parts of 2011 and 2012, the court ordered appellant’s temporary
placement in child-caring facilities away from home.
In March 2013, when appellant was fifteen years old, the State filed
another petition for the trial court to modify its disposition. In this petition, the
State alleged that appellant had violated his probation by viewing pornography,
allowing his sixteen-year-old girlfriend to spend multiple nights with him in his
5
See Tex. Fam. Code Ann. § 54.05(a) (West Supp. 2013).
3
bedroom, allowing another sixteen-year-old female to spend multiple nights with
him, and having sexual relationships with the sixteen-year-old girls. 6
At an April 2013 hearing in which the trial court received testimony from
one witness—Dr. David Sabine—and considered sealed documents filed by the
State, the court found that appellant had violated his probation in each of the
ways alleged by the State. 7 Following an agreement between appellant and the
State, the court committed appellant to the Texas Juvenile Justice Department
for an indeterminate period of time. The court also required appellant to register
as a sex offender with local and state law enforcement authorities and ordered
the registration to be made public. 8
Appellant filed a motion for new trial, contending that in ordering him to
register as a sex offender, the trial court had misapplied article 62.352 of the
code of criminal procedure. The trial court denied appellant’s motion by
operation of law, 9 and he brought this appeal.
6
Although the clerk’s record does not explicitly state that two different
sixteen-year-old girls slept at appellant’s residence and had sex with him,
appellant concedes in his brief that he committed those acts with two girls.
7
Appellant stipulated to the violations.
8
See Tex. Code Crim. Proc. Ann. art. 62.351(a) (West 2006).
9
See Tex. R. Civ. P. 329b(c).
4
Appellant’s Registration as a Sex Offender
On appeal, appellant argues only that the trial court abused its discretion
by requiring him to register as a sex offender. Generally, a juvenile adjudicated
delinquent for aggravated sexual assault is required to register as a sex offender
with law enforcement authorities. Tex. Code Crim. Proc. Ann. arts. 62.001(5)(A),
.051(a) (West Supp. 2013); see In re S.M., No. 12-12-00264-CV, 2013 WL
1046891, at *2 (Tex. App.—Tyler Mar. 13, 2013, no pet.) (mem. op.). But on a
juvenile’s request, the trial court must conduct a hearing to determine whether
the juvenile’s and the public’s interests require an exemption of the juvenile’s
registration. Tex. Code Crim. Proc. Ann. art. 62.351(a). At the hearing, to avoid
registration, the juvenile bears the burden to show by a preponderance of the
evidence that protection of the public is not increased by registration or that any
potential increase in protection of the public “is clearly outweighed by the
anticipated substantial harm to the [juvenile] and the [juvenile’s] family that would
result from registration.” Id. arts. 62.351(b), .352(a).
As we have recently explained,
In an appeal from an order requiring sex-offender registration,
our standard of review “is whether the juvenile court . . . abused its
discretion in requiring registration.” In our abuse-of-discretion
review, we ask whether the juvenile court (1) had sufficient
information upon which to exercise its discretion and (2) erred in its
application of discretion. We answer the first question under the
well-trod principles of a sufficiency-of-the-evidence review. In short,
we view all of the evidence introduced at the hearing in the light
most favorable to the ruling to determine whether any rational trier of
fact could have concluded that the public interest dictated
registration.
5
If sufficient evidence exists, we then determine under the
second inquiry whether the juvenile court made a reasonable
decision or an arbitrary one, i.e., a decision made without reference
to guiding rules or principles. If the juvenile court did not enter
specific findings, . . . we examine the implied findings supporting the
court’s decision to require registration.
In re J.T.W., No. 02-12-00430-CV, 2013 WL 3488153, at *2 (Tex. App.—Fort
Worth July 11, 2013, no pet.) (mem. op.) (citations and footnote omitted); see
Tex. Code Crim. Proc. Ann. art. 62.357(b) (West 2006) (stating that juvenile sex-
offender registration orders are appealable and must be reviewed for an abuse of
discretion); S.M., 2013 WL 1046891, at *1 (reciting the two-part test for
determining whether the trial court abused its discretion by ordering registration).
An abuse of discretion does not occur merely because a trial court decides a
matter differently than an appellate court would in a similar circumstance. Foster
v. Richardson, 303 S.W.3d 833, 837 (Tex. App.—Fort Worth 2009, no pet.).
Appellant does not contest whether the trial court had sufficient information
upon which to exercise its discretion; he contends only that the court misapplied
the evidence to require his registration. We conclude that the trial court’s
decision is reasonable under the standards of article 62.352.
Before requiring appellant to register as a sex offender, the trial court
heard testimony by Dr. Sabine, a psychologist. Dr. Sabine stated that he had
treated appellant in a sex-offender program. He described appellant as “very
likeable” and “charming.” He explained, however, that appellant had caused a
“series of setbacks that ultimately led to his going away [from] treatment.”
6
Dr. Sabine testified that appellant does “pretty well” when given firm limits
on his behavior but that when appellant reemerges into the community, he “really
[begins] to struggle pretty quickly.” For example, appellant had talked about
sexual activities with many girls. Although Dr. Sabine attempted to work with
appellant on making good decisions, appellant “just couldn’t pull back.”
Dr. Sabine said that appellant knew that having females spend the night with him
was not acceptable but did so anyway.
According to Dr. Sabine, appellant “just [could not] maintain his . . . self-
control.” Thus, it became clear to Dr. Sabine that appellant was “spiralling down
very quickly.” Dr. Sabine testified that at one point during the State’s case,
appellant went to a teen shelter because it was obvious that he could not safely
function in the community. While Dr. Sabine was treating appellant, he thought
that there was an “unacceptably high” probability that appellant would become a
danger to the public.
Dr. Sabine described appellant’s offense that led to his adjudication of
delinquency as “shocking” and “very serious.” Specifically, Dr. Sabine explained
that appellant had participated in the aggravated sexual assault of a child as part
of a group that he had apparently encouraged or led. The State’s prosecutor
said that appellant had been “adjudicated for gang raping a nine-year-old girl”
and that during the assault, he had held a knife to her throat. 10
10
The trial court was entitled to consider this representation of counsel,
which other documents in the record confirmed. See Tex. Code Crim. Proc. Ann.
7
Moreover, the trial court took judicial notice of the contents of a sealed
envelope that contained a cost spreadsheet for appellant’s treatments, social
history reports, and appellant’s psychological evaluation. The court stated on the
record that it had reviewed the contents of the envelope. See Tex. Code Crim.
Proc. Ann. art. 62.351(b)(4) (stating that courts may base their registration
determinations for juveniles on the “contents of a social history report prepared
by the juvenile probation department that may include the results of testing and
examination of the respondent by a psychologist, psychiatrist, or counselor”).
We have also reviewed the envelope’s sealed and confidential contents. While
we will not reveal details contained in the sealed documents, we conclude that
the documents support the trial court’s registration decision, especially to the
extent that they reveal more facts about appellant’s aggravated sexual assault
and his continuing sexual misbehavior while on probation.
Considering Dr. Sabine’s testimony and the sealed records together, the
trial court could have reasonably determined that appellant had not met his
burden to show that the public’s protection would not be increased by his
registration or that any such increase was clearly outweighed by anticipated
art. 62.351(b)(3). The prosecutor also noted that the trial court was considering
appellant’s third set of probation violations and that appellant had been given
“countless opportunities at a great expense”; the record likewise supports these
statements.
8
substantial harm to appellant or his family. 11 See Tex. Code Crim. Proc. Ann.
arts. 62.351(b), .352(a). Specifically, the trial court could have reasonably based
its decision on the violent nature of appellant’s offense, appellant’s repeated
failures to comply with rules aimed at correcting sexual misbehavior (including
viewing pornography and having sexual relationships), and Dr. Sabine’s
testimony about appellant’s deterioration of self-control even after receiving
significant sex-offender treatment. Cf. J.T.W., 2013 WL 3488153, at *2
(concluding that a juvenile’s viewing pornography, contacting minors, sending
sexually-explicit pictures, drinking alcohol, and paying two girls to kiss each
other, all which violated his probation, comprised sufficient evidence to uphold a
trial court’s decision requiring registration); In re C.G.M., No. 11-12-00031-CV,
2012 WL 2988818, at *3–4 (Tex. App.—Eastland July 19, 2012, no pet.)
(mem. op.) (affirming an order requiring a juvenile’s registration because, in part,
the juvenile violated his probation in multiple ways and had failed to complete
sex-offender treatment despite having two years to do so).
To argue that the trial court’s registration decision is not based on sufficient
evidence, appellant relies on Dr. Sabine’s ultimate opinion that the trial court
should have, for a fourth time, deferred the decision. Toward the end of the
hearing, Dr. Sabine testified,
11
We note that appellant did not present evidence of specialized harm that
he or his family would suffer by his registration as a sex offender.
9
If we were at the point where [appellant] was about to turn eighteen,
I would really be . . . having to consider this a lot more carefully. But
at this point for me, in my professional judgment, [appellant] is not
quite yet sixteen, he’s gonna have this opportunity in treatment.
During that time I presume that the community is going to be safe
. . . . And so that particular concern would be mitigated by his
participation there and he would have [an] opportunity to sort of
figure this out. He has some . . . things in his favor. He’s bright and
he’s an engaging young man. I mean, those things could go for the
good or for the bad, but those are things that he possesses. But
because of his tender age . . . , he’s still in the process of forming
those frontal lobes . . . . And so as maturation continues over these
next two years, I’m very hopeful that there will be some things snap
into place for [appellant], both because of the neurology of it and
also because of the opportunities of treatment he’s going to get and
because of being in a place that for the time being will be safe in
terms of the community. It may be if he doesn’t avail himself of
those opportunities, that registration would certainly be appropriate.
But today, . . . the deferring of that decision would be my
recommendation because the implications for [appellant’s] life about
registering, if it ultimately ends up being not necessary, are so great
at that time, that the issue to protect the community doesn’t seem to
rise to that level at this point.
Article 62.352 states that a trial court “may” defer a registration decision
until the juvenile “has completed treatment for the . . . sexual offense as a
condition of probation or while committed to the Texas Juvenile Justice
Department.” Tex. Code Crim. Proc. Ann. art. 62.352(b)(1). At the hearing, the
trial court received evidence that in the four years since it had adjudicated
appellant delinquent (April 2009 to April 2013), he had participated in several
kinds of treatment (including graduating from one treatment placement) but none
of the treatment options had stopped his sexual misbehavior. Although Dr.
Sabine testified that more sex-offender treatment would be available to appellant
during his commitment to the Texas Juvenile Justice Department, the trial court
10
could have reasonably relied on appellant’s prior failures to modify his behavior
after treatment in declining to defer its registration decision for a fourth time while
more treatment was given. 12 See id.; see also S.M., 2013 WL 1046891, at *2–3
(affirming a decision requiring a juvenile’s registration while the juvenile was
serving a determinate sentence because, in part, a counselor concluded that
treatment might not be effective); In re J.D.G., 141 S.W.3d 319, 322 (Tex. App.—
Corpus Christi 2004, no pet.) (holding that a trial court did not abuse its discretion
by declining to continue a deferral of the registration decision when the juvenile
violated numerous probation terms and had made little progress in sex-offender
treatment).
For these reasons, considering all of the evidence, we cannot conclude
that the trial court abused its discretion by requiring appellant’s registration as a
sex offender. See Tex. Code Crim. Proc. Ann. art. 62.352(a); J.T.W., 2013 WL
3488153, at *2. We overrule appellant’s sole point.
12
Dr. Sabine agreed with a description of appellant as a “treatment failure.”
Appellant has not directed us to authority establishing that the trial court was
bound by Dr. Sabine’s recommendation of a deferral of the court’s registration
decision.
11
Conclusion
Having overruled appellant’s only point, we affirm the trial court’s order
requiring his registration as a sex offender.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: February 20, 2014
12