What are the limits of a juvenile court’s discretion in deciding whether to release a juvenile on community supervision or transfer the juvenile to the Institutional Division of the Texas Department of Criminal Justice (TDCJ)? Does the juvenile court’s discretion allow it to consider factors beyond those set out by the legislature? While the trial court has wide discretion, that discretion is not unlimited. In two issues on appeal, A.I.G. claims that (1) the juvenile court abused its discretion in transferring him to the TDCJ and (2) the juvenile court’s ruling to transfer him to the TDCJ constituted a cruel and unusual punishment in violation of the Eighth Amendment. See U.S. Const. amend. VIII. We reverse the juvenile court’s transfer order and remand the case to the juvenile court for further proceedings limited to entering an order returning A.I.G. to TJJD with approval for the release of A.I.G. under community supervision. Tex. Fam. Code Ann. §§ 54.11(j)(1), 56.01(i).[1] Background In November 2021, A.I.G—then 16 years old—pleaded true to capital murder by terroristic threat and was adjudicated as a child who had engaged in delinquent conduct. See Tex. Penal Code Ann. § 19.03(a)(2); Juvenile Justice Code, Tex. Fam. Code Ann. §§ 51.01(a)(1), 54.03.[2] The juvenile court accepted his plea, and after hearing evidence, signed an order of disposition committing A.I.G. to the custody of the Texas Juvenile Justice Department (TJJD) on a 20-year determinate sentence. Tex. Fam. Code Ann. §§ 51.04(b), 53.045(a)(2), (d), 54.04(d)(3). In 2023, the TJJD requested a transfer or release hearing because A.I.G. would not reach the statutory minimum of ten years before his 19th birthday. See Tex. Fam. Code Ann. § 54.11(a), (i), (j) (stating that TJJD may request transfer or release hearing, after which juvenile court will decide whether juvenile should be returned to TJJD—with or without approval for community supervision—or transferred to TDCJ to serve out the remainder of the sentence); Tex. Hum. Res. Code Ann. § 245.051(c)(1) (“If a child is committed to the department under a determinate sentence . . . the department may not release the child under supervision without approval of the juvenile court that entered the order of commitment unless the child has served at least: (1) 10 years, if the child was sentenced to commitment for conduct constituting capital murder[.]“). After the hearing, the juvenile court signed an order transferring A.I.G. to TDCJ for the completion of his sentence. Tex. Fam. Code Ann. §§ 54.11(i)(2), § 56.01(c)(2) (allowing appeals of orders entered under Section 54.11(i)(2)). At the transfer or release hearing, the following witnesses testified. Tami Coy Tami Coy, who oversaw the Sentenced Offender Department and spent more than 33 years at TJJD, testified that A.I.G. served 36 months in custody, including 19 months in the Giddings State School at TJJD. Coy testified that A.I.G. earned his high school diploma, participated on the student counsel, and competed in the athletics program. She also testified that A.I.G. stayed out of trouble and had no “write ups.” Coy testified that A.I.G. finished the alcohol and other drugs treatment program, aggression replacement training program, and the power source program.[3] Coy observed that A.I.G. completed the necessary components to reduce his risk factors related to violent and nonviolent recidivism. Coy testified that TJJD recommended parole for A.I.G. Trinidad Correa Trinidad Correa, a case manager at TJJD for 26 years, testified that A.I.G. followed rules and did not require redirection in completing assignments. Correa testified that A.I.G. was an A/B honor roll student and he worked hard to earn job skill certificates. Her opinion was that if A.I.G. were released on community supervision, he could use his certificates to get jobs in the community. Correa also testified that A.I.G. worked around campus as a maintenance person cutting grass, cleaning toilets, painting, and mopping. Correa further described A.I.G. as always willing to go to work without any complaints. She also testified that his family members were very supportive and were very involved with his rehabilitation, visited him on campus, attended his off-campus sports games, and participated in aftercare programming. Overall, she thought that A.I.G.’s time at Giddings had been “very successful.” Jill Fowler Jill Fowler, a teacher at TJJD who previously spent 30 years in public schools, testified that A.I.G would help other students with their homework or their attitudes and that he would talk to students and school staff about implementing programs to improve the campus. Fowler testified that A.I.G. could be an asset to the community immediately upon release. Tracy Walker Tracey Walker, the assistant principal of the Lone Star High School Southeast on the campus, testified about A.I.G.’s leadership skills and his respectful attitude. Walker also testified he was the only student allowed to walk the halls of the school without being checked. She stated staff and students respected him for his character, integrity, and behavior. He was chosen to represent the school to donate handmade rocking horses to a Ronald McDonald House. In addition, Walker testified the school created a manager position for him to assist the sports teams after he graduated. Walker also shared her concern that other TJJD students might give up hope of rehabilitation if A.I.G. were to be denied parole after his work in the rehabilitation program “above and beyond what we requested.” Her opinion was that if students were told they could earn a second chance by doing well, then the system needed to follow through on that promise; otherwise, “why not just send them to TDCJ off the bat? Why do we have the interim step of TJJD[?]“ Spencer Washington Spencer Washington, the director of clinical services at the Giddings State School at TJJD, testified that A.I.G. used his leadership skills to support the students around him. Washington also said A.I.G. facilitated his group for the power source program. According to Washington, A.I.G. did not shy away from his role in the crime he committed, and he held himself accountable for his actions. Because A.I.G. had goals and had already earned several vocational certificates, Washington believed A.I.G. would do well if released on community supervision. Russell Hall Russell Hall, the director of youth homeless services at Houston reVision, described the program A.I.G. would begin in the community if he were paroled. He testified how reVision helped young people access housing, employment, education, and food sources as they transitioned from parole and probation to independence. Hall testified that A.I.G. had already been accepted into the program; according to Hall, the program’s CEO interviewed A.I.G., “signed off 110 percent” on accepting A.I.G., and wanted A.I.G. to start as soon as possible. Hall hoped that A.I.G. could even act as a mentor by sharing his story and helping other youth make better choices. Hall believed that A.I.G. would do extremely well in the reVision program because A.I.G.’s drive, determination, follow-through, respect and remorse were miles ahead of other candidates who had applied to reVision. In Hall’s opinion, if anyone from Giddings were to succeed, it would be someone like A.I.G. Laura Fletcher Laura Fletcher, a retired teacher and a mentor for students at Giddings, testified that A.I.G. would do well back in the community based on his progress at TJJD. She testified that she had worked with troubled youth for 45 years, and she had met with A.I.G. every week for two hours. Fletcher testified that A.I.G. had openly expressed grief for the damage he had caused. She believed that A.I.G. would do well in the future because he was goal oriented, and she had never seen him set a goal he did not meet. Fletcher added that A.I.G. had inspired other people to believe they can be forgiven and rehabilitated. She also testified that other kids on campus would lose hope if A.I.G. were sent to prison. Tina Handrick Tina Handrick, a family re-entry specialist at TJJD, wanted to testify because “[A.I.G.] is important. His freedom is important, if it can be accomplished.” She observed that A.I.G. worked with the maintenance program and would take out the trash and sweep and mop the floors without being asked. He would also be called to work as a substitute in the cafeteria if they were short a worker. She testified that when other kids became friends with A.I.G., their behavior improved. She stated A.I.G. frequently intervened to prevent fights from happening. Handrick observed that A.I.G. showed a lot of remorse and empathy for his victims and their families. In her opinion, other kids in the program would give up if A.I.G. were sent to prison because they would see there was no purpose of completing treatment and being successful. Handrick also believed that A.I.G. had a bright future ahead and that he would find success in the reVision program. She shared her belief that A.I.G. had done everything in his power to succeed in the program. Austin Jones Austin Jones, a team leader at TJJD with 20 years of experience in the military, testified about A.I.G.’s remorse for his offense and his growth as an individual. Jones testified that he knew A.I.G. better than anyone else because he spent ten to fourteen hours a day with him. He testified A.I.G. was very remorseful about how his actions affected the victim’s family, but he also testified A.I.G. got caught in a bad situation and would carry the pain and guilt from that for the rest of his life. Jones stated A.I.G. gave TJJD all he had, and A.I.G. walked away from things that could have gotten him in more trouble. Jones stated that A.I.G. expressed a desire to help other high-risk youth by sharing his past in hopes of saving their futures. Jones also testified that A.I.G. could go to college and make a good career for himself. Jones’s opinion was that if given an opportunity, A.I.G. would take advantage of that opportunity. Laura Washington Laura Washington, a mental health specialist at TJJD, testified that A.I.G.’s prognosis if returned to the community was good. She completed a psychological evaluation to assess any risk of A.I.G. returning to the community and considered his behavioral infractions, interactions with staff, ability to assess the harm he caused to others, his level of empathy, and his account of the events leading to the offense. She also considered his individual risk factors to determine whether he could be successful if granted parole. Washington did not know A.I.G. personally but was aware of his reputation as a respectful youth who was trusted enough to have employment within TJJD and to leave campus. She also testified that A.I.G. was “better than most” on protective factors, including a lot of pro-social involvement. A.I.G. had told Washington he witnessed domestic violence in his home as a child, and on two separate occasions watched his mother almost die. A.I.G.’s coping strategies deteriorated once his mother was diagnosed with cancer. Washington stated that A.I.G.’s long-term goal was to become a better person and help others. Washington suggested that the community would be safer with the current version of A.I.G. compared to the version of himself he might become after a transfer to TDCJ. A.I.G. A.I.G. testified about his childhood, his remorse, and the offense. He recounted being bullied in elementary school because he did not have money to dress better. He also testified after his mother’s cancer diagnosis he started using marijuana, but the drugs did not stop the pain he was feeling. A.I.G. also discussed the details of his offense. According to A.I.G., Ruben Perez sent him a text stating he hoped A.I.G.’s mother died “so he could piss on her grave.” A.I.G. set up a fist-fight with Ruben and asked for a ride from one of the co-respondents; he asked for them to be present during the fight in case he was “jumped” by Ruben’s friends. When A.I.G. discovered that several of his co-respondents had brought guns, he told them to remain in the car and insisted that they not rob anyone or start a fight. However, A.I.G. claims the co-respondents left the car despite his requests. At the pavilion where the fight was to occur, Ruben’s older brother, Giancarlo Perez, took Ruben’s place instead. Soon after that, the co-respondents pulled their guns out and tried to rob Giancarlo. When Giancarlo grabbed the gun that was pointed at him, Giancarlo and a co-respondent started fighting over the gun. Giancarlo was shot and died. During the time he was in jail for the transfer hearing, A.I.G. testified he ran into Ruben. They spoke for two hours until Ruben told A.I.G. to stand up. A.I.G. said he thought Ruben was going to hit him, but Ruben instead shook A.I.G.’s hand. Then Ruben hugged A.I.G., started crying, and told A.I.G. that he forgave him. When he arrived at TJJD, A.I.G. testified he wanted to do good for his family and for everybody. He focused on getting his high-school diploma because he believed he could become someone better through education. He also testified that the treatment at TJJD broke him down piece by piece into the person he was today. A.I.G. stated he wanted to help others, and one of his goals was to help young people avoid situations like his own. Brian Wahlert Brian Wahlert, the primary detective on the case, was the only witness to testify for the State. When the offense occurred, he testified he believed A.I.G’s role was simply in setting up a fist fight with Ruben; Wahlert did not believe A.I.G. intended to rob or shoot anybody. The detective also admitted that A.I.G. cooperated with the police during the investigation. After hearing argument from both sides, the juvenile court ruled that A.I.G. should be transferred to TDCJ to serve out the remainder of his sentence. Transfer to TDCJ from TJJD In his first issue, A.I.G. argues that the juvenile court abused its discretion in transferring him to TDCJ to fulfill the remainder of his sentence as opposed to approving him to be released on community supervision. Standard of review and applicable law Under Texas law, TJJD is tasked with rehabilitating each child committed to its care, with the ultimate goal to “reduce recidivism and ensure the successful reentry and reintegration of the child into the community.” Tex. Hum. Res. Code Ann. § 245.0535. If a child has not reached their minimum sentence—in this case, 10 years— and is nearing their 19th birthday, TJJD will notify the juvenile court to set a transfer or release hearing. Tex. Fam. Code Ann. § 54.11(a). In determining whether the child should be paroled or transferred to TDCJ to complete the sentence, a juvenile court may consider numerous factors, including: (1) the experiences and character of the person before and after commitment to the Texas Juvenile Justice Department or post-adjudication secure correctional facility; (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 TJJD and prosecuting attorney; (6) the best interests of the person; and (7) any other factor relevant to the issue to be decided. See Tex. Fam. Code Ann. § 54.11(k). The juvenile court is not required to consider all the listed factors, the State is not required to present evidence of each factor, and the court may assign different weights to the factors. In re J.J., 276 S.W.3d 171, 178 (Tex. App.—Austin 2008, pet. denied). We review a juvenile court’s decision to transfer a child to the TDCJ for an abuse of discretion. See id. Generally, a court abuses its discretion if “it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). “In deciding whether the juvenile court abused its discretion, we review the entire record to determine if the court acted without reference to any guiding rules or principles. If some evidence exists to support the juvenile court’s decision, there is no abuse of discretion.” J.J., 276 S.W.3d at 178. (internal quotations and citations omitted); see Sherman v. Sherman, 650 S.W.3d 897, 899 (Tex. App.—Fort Worth 2022, no pet.) (noting no abuse of discretion if some substantive and probative evidence supports trial court’s decision or if reasonable minds could differ as to result). Stated conversely, a trial court abuses its discretion when it “acts arbitrarily or unreasonably or when it rules based upon factual assertions not supported by the record.” Cook v. Mayfield, 886 S.W.2d 840, 841 (Tex. App.—Waco 1994, no writ). Application In making its final determination to transfer A.I.G. to TDCJ, the juvenile court orally analyzed each of the enumerated factors found in section 54.11(k). Personal experience and character of A.I.G. before and after commitment to TJJD The juvenile court contrasted A.I.G.’s character before the offense with his character after his time in TJJD: Before[,] you were not a good young man, using drugs, participating actively for all intent and purposes what looks like gang life, drugs, violence, guns, participating actively in what turned into a capital murder. Since then you have — based on all of the evidence in front of me — become something of a charismatic leader. Nature of the offense and manner in which it was committed The juvenile court was concerned because it was a “deliberate murder in a public place that served no purpose[,]” but the juvenile court acknowledged that A.I.G. did not commit the murder himself. Ability of A.I.G. to contribute to society The juvenile court acknowledged A.I.G.’s ability to contribute to society and fully credited the testimony of the witnesses that testified on A.I.G.’s behalf: Your ability to contribute to society — according to all of the adults that have known you over the last eighteen months or so, you have real ability, and I see no reason not to believe them. In fact, in some respects I think your testimony proves them right. Your reaction to what you’ve done is the right reaction. Your reaction to the photographs of how you conducted yourself before was the right reaction. You are, in fact, showing, I think, some real promise there. Protection of Ruben’s family Regarding the protection of the victim and the victim’s family, the juvenile court found no concern: “[T]here is really no evidence to suggest, I think, that you pose a real ongoing threat there.” Recommendations of TJJD and prosecuting attorney On this factor, the juvenile court concluded that TJJD’s recommendation to parole A.I.G. and the State’s recommendation to transfer A.I.G. to the TDCJ cancel one another out. Best interests of A.I.G. and other relevant factors The juvenile court admitted that it “struggled the most” in analyzing the best interests of A.I.G. and other relevant factors: Ms. Walker, in particular, asked, I think, some tough questions: What hope is there for the other kids, if I send you to TDCJ? What purpose does the staff serve at Giddings? What hope is there, if I send you to prison? It’s a tough question. They are. So, is murder. What we’re dealing with is nothing less than the ending of human life. Snuffing it out for nothing. You owe a debt. You forfeit your liberty, when you stole his life. Liberty can only be bought with blood and sweat and tears. There’s a price for it. I think your life — I think your honor requires you to finish paying the debt. The juvenile court’s initial response seemed to indicate that it recognized, as an additionally relevant factor, that transferring someone like A.I.G.—who has done everything asked of him as part of the program—to TDCJ implies that TJJD is actually punitive in nature, and not truly rehabilitative as Texas law requires. However, despite recognizing this factor, the juvenile court ultimately decided, without any basis, that A.I.G.’s personal “honor” demanded that he complete his sentence at TDCJ. But there is nothing in the record to support the juvenile court’s conclusion that A.I.G.’s best interests would be served by transferring him to TDCJ. And there was no testimony about “honor” or whether it is even a relevant factor that the trial court can consider. A total of ten witnesses testified on A.I.G.’s behalf, collectively stating that A.I.G. had excelled while in TJJD’s custody: he had no infractions or write-ups in his three years with TJJD; he prevented students from escalating fights; he fulfilled jobs and completed tasks dutifully; he served as a leader and inspiration to other kids in the system; and his and the community’s best interests would be served by releasing him on community supervision. Multiple witnesses opined that A.I.G. would do extremely well if released and that he had the education, experience, and job skill certificates to enable him to find a job. Thus, releasing him on parole would allow him to begin his process of re-entering and reintegrating into the community, as is TJJD’s stated goal. The community’s best interests would be served by releasing A.I.G. on parole because, according to Washington, the community would be safer with the current version of A.I.G. compared to the version of himself he might become after being in TDCJ for more than a decade. And multiple witnesses asserted that A.I.G.’s risk factors were low. Not a single witness voiced any concerns over releasing A.I.G. on community supervision, and not one stated that A.I.G.’s best interests would be served by transferring him to TDCJ. The State’s only witness, Wahlert, had nothing negative to say about A.I.G. He acknowledged that A.I.G. was cooperative, and he believed that A.I.G. did not intend to rob or shoot anyone on the night of the offense. Wahlert did testify that A.I.G.’s co-respondents seemed to be bragging about the events of that night and proud that someone was shot, but Wahlert did not ascribe that conduct to A.I.G. The only “evidence” to the contrary regarding best interests comes from the State during its closing argument: The State is not trying to hide the ball here. I think [A.I.G.] has done well in TJJD. I think he’s done everything that they’ve asked him to do. I think that all of those factors weigh in favor of parole. . . . . But, the fact of the matter remains that TJJD, juvenile prison, is the most structured environment that a young person can experience in the State of Texas. I think we can say it’s easier to follow the rules there, when you’re surrounded by every sort of resource, when you are surrounded by dozens of adults that are there to try to help you succeed. . . . . Our office has discussed what we believe is in the best interest of the community. We think that three years is not enough, while understanding all of the work that this young man has done, while understanding all of the hard work that he’s put into rehabilitating, and understanding and empathizing. But, for the State, what we see is a risk on the unknown. We first note that section 54.11(k) specifies the “best interests of the person” as a factor to be considered by the juvenile court; it makes no mention of the community’s best interests. Tex. Fam. Code Ann. § 54.11(k) (emphasis added). There is no evidence in the record suggesting that A.I.G.’s best interests would somehow be served by completing his sentence in TDCJ. The witnesses testified that A.I.G. had excelled in TJJD, and that his best interests would be best served by release on community supervision so he could begin rebuilding his life and reintegrating into society. Assuming the law allows consideration of the community’s best interests as an additional relevant factor under section 54.11(k)(7), there was no evidence presented that the community’s best interests was served by A.I.G.’s transfer to TDCJ. All the evidence adduced in court indicated that A.I.G. would be a positive asset to the community. The State simply implied, contrary to the testimony of the TJJD employees, that A.I.G. might pose a risk to the community without all the structure, supervision, and resources that TJJD provides. In summary, as the State acknowledged, the factors weighed overwhelmingly in favor of releasing A.I.G. on community supervision. A.I.G. was not the person who murdered Giancarlo, and he was deeply remorseful for his behavior and the unintended outcome. A.I.G. excelled while in TJJD, receiving good grades, having no disciplinary problems, and serving as a positive role model for other youth. Despite the testimony from numerous individuals that A.I.G.’s best interests was in being paroled so he could continue on his path of personal growth and reintegration into society, and notwithstanding any testimony to the contrary, the juvenile court ultimately determined that A.I.G.’s “honor”—a factor not raised by any witness or any of the evidence—demanded A.I.G. serve the remainder of his sentence in TDCJ. Based on a thorough review of the record, we conclude the juvenile court abused its discretion in transferring A.I.G. to TDCJ. We sustain A.I.G.’s first issue. We need not reach his second issue regarding whether his transfer to TDCJ violated the Eighth Amendment. See Tex. R. App. P. 47.1. Conclusion We reverse the transfer order of the juvenile court as challenged on appeal and remand the case to the juvenile court with instructions to issue an order returning A.I.G. to TJJD with approval for the release of A.I.G. under community supervision. Charles A. Spain Justice Panel consists of Justices Spain, Poissant, and Wilson.
