Court: Court of Appeals of Texas; August 5, 2010; Texas; State Appellate Court
J.B.L. appeals an order transferring him to the Texas Department of Criminal Justice to complete his determinate sentence. He challenges the constitutionality of the determinate sentencing statute, asserting it violates due process by allowing facts that increase punishment to be determined without a jury. Citing *Apprendi v. New Jersey*, J.B.L. argues that any fact increasing the penalty beyond the statutory maximum must be proven to a jury beyond a reasonable doubt. He identifies two points of concern: the grand jury's approval of the petition for determinate sentencing and the trial court's transfer decision, both of which he claims increased his punishment without jury determination.
The court finds that the grand jury's certification functions similarly to an indictment and meets constitutional requirements. The procedure under Section 53.045 does not violate due process, as the jury determined the maximum punishment during the trial. The jury was instructed on the potential consequences of J.B.L.'s conviction and ultimately assessed a thirty-year sentence for Aggravated Robbery, confirming that the jury did determine the maximum punishment permissible. The trial court's judgment is affirmed.
J.B.L. claims that the transfer procedure under Section 54.11 of the Texas Family Code violates due process because the jury was not allowed to determine his eligibility for transfer. He cites Apprendi, which prohibits a trial court from imposing a sentence greater than what the jury authorized. The transfer process permits the trial court to decide on a lesser sentence than that given by the jury, but J.B.L. was not subjected to a harsher punishment than the thirty-year sentence authorized by the jury for aggravated robbery.
In addressing the third issue, J.B.L. contests the sufficiency of evidence supporting two specific findings: (1) that he did not complete his minimum period of confinement at the Texas Youth Commission, and (2) that the Youth Commission fully recommended his transfer to TDCJ-ID. J.B.L. argues the first finding is incorrect as the disposition order did not specify a minimum confinement period. However, this finding is related to Human Resources Code Section 61.081, which prohibits release without juvenile court approval until the juvenile has served three years of a determinate sentence for a first-degree felony. J.B.L. has not disputed that he served only twenty-two months of his sentence, undermining his argument on this point.
Regarding the second finding, testimony from the Texas Youth Commission’s court liaison, Leonard Cucolo, confirmed the commission's full recommendation for J.B.L.’s transfer to the adult prison system. Cucolo, alongside other officials, supported the recommendation, which was documented in the commission’s file. This included a signed document titled "Movement from High Restriction" that approved a referral to juvenile court for transfer, as well as a "Psychological Assessment Update" recommending the transfer.
J.B.L. contests the trial court's finding regarding his transfer to the adult prison system, asserting it contradicts the testimony of Cucolo from the Texas Youth Commission, who stated that J.B.L. did not meet the transfer criteria. Cucolo detailed the commission's objective criteria for determining whether a child approaching age nineteen could remain in the Texas Youth Commission or be referred to juvenile court for transfer. Following statutory changes in 2007, the commission could not retain youthful offenders beyond their nineteenth birthday. For J.B.L., who would turn nineteen before serving three years of his sentence for aggravated robbery, this meant he could not be released on parole and had to be considered for transfer instead.
In making transfer recommendations, the commission considered factors similar to those a juvenile court evaluates, as outlined in Tex. Fam. Code Ann. 54.11(k), such as the individual’s character, the nature of the offense, and the best interests of the person involved. The trial court's decision in such matters is reviewed for abuse of discretion. Cucolo testified that J.B.L. was academically successful, achieving valedictorian of his G.E.D. class, and had participated in rehabilitation programs, although his status in the Youth Empowerment Stage was "inactive," indicating he may not have fully met all program requirements. J.B.L. had a significant delinquent history, starting with an offense at age fourteen, leading to multiple adjudications and ultimately the aggravated robbery that resulted in his current sentence, which was part of a series of armed robberies.
J.B.L. has a history of delinquent behavior and displayed significant risk factors while at the Texas Youth Commission. His issues with authority included being in unauthorized areas, throwing objects, using profanity, and failing to follow staff instructions. These patterns raised concerns about his ability to adapt to a less restrictive parole environment. Two psychological assessments by Blizzard revealed a shift in recommendation; while the initial assessment deemed him a candidate for adult parole, the second suggested he should be returned to court for potential transfer to the prison system due to ongoing disrespectful behavior and a lack of internalized change. Cucolo noted that J.B.L.'s unsuccessful juvenile probation and susceptibility to negative peer influence were additional risk factors. However, the trial court considered both Cucolo's testimony and the commission's file in line with Section 54.11(k) of the Texas Family Code.
Contrastingly, forensic psychologist Kit William Harrison assessed J.B.L.'s risk as low due to a lack of chemical dependency and a criminal history characterized by adolescent rather than chronic behavior. He noted J.B.L. has good intellectual functioning and diagnosed him with adolescent onset conduct disorder, which often resolves by early adulthood. While acknowledging concerns about J.B.L.'s disrespectful tendencies, Harrison classified his dynamic risk of re-offending as low to moderate. J.B.L.'s mother expressed support for his efforts on parole, and J.B.L. demonstrated remorse for his past actions, indicating personal growth and aspirations for a future career as a certified welder.
J.B.L. acknowledged having a tattoo associated with the Bloods gang but denied any gang affiliation, claiming many share the same tattoo. The trial court's decision to transfer J.B.L. to the Texas Department of Criminal Justice was supported by evidence, including his intelligence and recognition of the harm caused by his actions, but also by his severe conduct, unsuccessful probation history, and disrespect towards authority. The appellate court affirmed this decision and overruled issue three. J.B.L. raised claims of constitutional violations but based his arguments solely on federal precedent, thus the court did not address his Texas Constitutional claims. He failed to demonstrate that the state constitution offers more protection than the federal constitution and did not contest the jury's ability to impose a thirty-year sentence. J.B.L. challenged only two of the seventeen findings made by the trial court, not disputing that he was adjudicated for aggravated robbery on June 13, 2007, and had served approximately 22 months of his 30-year sentence.
