In the Matter of N. M. - P. v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00492-CV

In the Matter of N. M. - P.

FROM THE COUNTY COURT OF HAYS COUNTY

NO. 5524, THE HONORABLE CHRISTOPHER P. JOHNSON, JUDGE PRESIDING

MEMORANDUM OPINION

N.M.-P. (Nathan) pleaded true to capital murder and received a determinate

sentence of thirty-five years’ commitment. By two issues, Nathan argues that the trial court

abused its discretion by later transferring him from the Texas Juvenile Justice Department

(TJJD) to the Texas Department of Criminal Justice (TDCJ) because: (1) the trial court failed to

conduct a competency inquiry, in violation of Article 46B of the Code of Criminal Procedure and

Section 55.04 of the Family Code; and (2) Nathan’s intellectual disability was not appropriately

accommodated by TJJD and may have contributed to his lack of rehabilitation. We affirm.

I. BACKGROUND

In January of 2021, then-sixteen-year-old Nathan shot and killed Giancarlo Perez

during a robbery. In March of 2021, the State filed its original petition alleging that Nathan

committed the offense of capital murder and seeking a discretionary transfer to criminal court.

On May 16, 2022, the State filed an amended petition alleging that Nathan committed delinquent

conduct—as relevant here, capital murder—and requested that the juvenile court order a

disposition under the Family Code’s determinate sentencing scheme. See, e.g., Tex. Fam. Code

§ 53.045. On May 18, 2022, as part of a plea agreement, Nathan judicially admitted and

confessed to committing the offense of capital murder, and the trial court imposed a determinate

sentence of thirty-five years’ commitment to TJJD with a possible transfer to criminal court.

In July of 2023, with Nathan’s nineteenth birthday approaching, the juvenile court

held a release-or-transfer hearing to determine whether Nathan should be conditionally released

from custody or transferred to the TDCJ to serve the remainder of the thirty-five-year

disposition. At the conclusion of the hearing, the juvenile court ordered Nathan transferred to

TDCJ to serve the remainder of his disposition. This appeal followed.

II. NATHAN’S COMPETENCY

By his first issue, Nathan contends that the trial court violated his due process

rights by failing to conduct an inquiry into his competency during the release-or-transfer hearing.

A. Standard of Review & Applicable Law

Competence to stand trial is a rudimentary requirement of due process. Cooper v.

Oklahoma, 517 U.S. 348, 354–55 (1996) (quoting Dusky v. United States, 362 U.S. 402, 402

(1960) (per curiam)). To satisfy due process standards, the Legislature codified substantive and

procedural frameworks to ensure the competency of both juveniles and adults accused of

criminal conduct. See, e.g., Tex. Code Crim. Proc. ch. 46B; Tex. Fam. Code ch. 55. Under the

Family Code, a child “who as a result of mental illness or an intellectual disability lacks capacity

to understand the proceedings in juvenile court or to assist in the child’s own defense is unfit to

proceed and shall not be subjected to discretionary transfer to criminal court, adjudication,

disposition, or modification of disposition as long as such incapacity endures.” Tex. Fam. Code

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§ 55.31(a). Similarly, under the Code of Criminal Procedure, if a suggestion of the defendant’s

incompetency is raised, the court must “determine by informal inquiry whether there is some

evidence from any source that would support a finding that the defendant may be incompetent to

stand trial.” Tex. Code Crim. Proc. art. 46B.004(c). If the court determines that there is some

evidence of incompetency, it must stay the proceedings and conduct a formal competency

inquiry. Id. art. 46B.004(d).

We review a trial court’s compliance with these frameworks for an abuse of

discretion. See In re H.C., 562 S.W.3d 30, 42 n.9 (Tex. App.—Texarkana 2018, no pet.) (citing

In re K.A.H., 700 S.W.2d 782, 784 (Tex. App.—Fort Worth 1985, no writ)); Kostura v. State,

292 S.W.3d 744, 746 (Tex. App.—Houston [14th Dist.] 2009, no pet.). A court “abuses its

discretion when it acts arbitrarily or unreasonably or without reference to guiding rules or

principles.” In re H.C., 562 S.W.3d at 45.

B. Analysis

“After a child with a determinate sentence reaches the age of sixteen, but before

reaching the age of nineteen, the TJJD may request an order approving the transfer of the child to

the TDCJ if the sentence has not been completed and the child poses a continuing risk to the

community’s welfare.” J.A.F. v. State, No. 14-23-00922-CV, 2025 WL 793579, at *6 (Tex.

App.—Houston [14th Dist.] Mar. 13, 2025, no pet.) (mem. op.) (citing Tex. Hum. Res. Code

§ 244.014). “On receipt of a referral from TJJD, the trial court is required to hold a hearing on

the matter.” In re D.E.P., No. 03-21-00413-CV, 2022 WL 3638231, at *2 (Tex. App.—Austin

Aug. 24, 2022, no pet.) (mem. op.) (citing Tex. Fam. Code § 54.11(a)).

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In these release-or-transfer hearings, like the one that occurred below, the trial

court acts in a similar fashion as a parole board, considering whether the juvenile, the victim, and

society-at-large would be better served by releasing the juvenile on adult parole or transferring

him to TDCJ. See Tex. Fam. Code § 54.11(k). Because the adjudication of delinquent conduct

and disposition have already occurred by this stage, the intermediate courts of appeals have

routinely held that not all of the customary due process protections normally afforded apply.

See, e.g., In re S.M., 207 S.W.3d 421, 425 (Tex. App.—Fort Worth 2006, pet. denied) (“[T]he

hearing does not need to meet the same stringent due process requirements as a trial in which a

person’s guilt is decided.”); In re C.D.T., 98 S.W.3d 280, 282 (Tex. App.—Houston [1st Dist.]

2003, pet. denied) (“It is not part of the guilt/innocence determination, consequently it need not

meet the extensive due process requirements of an actual trial.”); In re D.S., 921 S.W.2d 383,

387 (Tex. App.—Corpus Christi–Edinburg 1996, writ dism’d w.o.j.) (“[T]he release or transfer

hearing is a ‘second chance hearing’ after appellant had already been sentenced to a determinate

number of years. It is not part of the guilt/innocence determination, consequently it need not

meet the extensive due process requirements of an actual trial.”); see also Morrissey v. Brewer,

408 U.S. 471, 481 (1972) (“[D]ue process is flexible and calls for such procedural protections as

the particular situation demands.”); Greenholtz v. Inmates of Neb. Penal & Corr. Complex,

442 U.S. 1, 7 (1979) (“There is no constitutional right or inherent right of a convicted person to

be conditionally released before the expiration of a valid sentence.”).

Nevertheless, one of our sister courts has concluded that a juvenile offender must

be competent for a release-or-transfer hearing to proceed. In re N.S., No. 10-01-319-CV,

2004 WL 254215, at *6 (Tex. App.—Waco Feb. 11, 2004, pet. denied) (mem. op.) (“[W]e

conclude that due process demands that a juvenile offender be competent before being subjected

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to a transfer hearing under section 54.11.”). Therefore, we will assume without deciding that due

process required Nathan to be competent to be subjected to a release-or-transfer hearing.

As discussed above, there are two statutory schemes that provide a framework for

competency determinations, that of the Family Code and that of the Code of Criminal Procedure.

The State and Nathan dispute which applies. Nathan contends that both the Family Code’s and

the Code of Criminal Procedure’s provisions concerning competency apply, while the State

contends that solely the Family Code applies. The distinction between the two is when the trial

court is obligated to conduct a competency inquiry. Under the Code of Criminal Procedure, if

evidence suggesting the defendant may be incompetent comes to the trial court’s attention from

any source, including the court’s own observations, it must conduct an informal inquiry into the

defendant’s competency to stand trial. Tex. Code Crim. Proc. art. 46B.004(b), (c). But under the

Family Code, the trial court only needs to determine whether a juvenile may be unfit to proceed

“[o]n a motion by a party.” Tex. Fam. Code § 55.31(b); see In re H.C., 562 S.W.3d at 41

(“[T]he Family Code, unlike the Code of Criminal Procedure, does not require the juvenile court

to sua sponte order an evaluation to determine whether a child is fit to proceed with a

modification hearing when it has evidence before it suggesting that the child may be unfit

to proceed.”).

We need not decide which framework, if any, applies in these circumstances, as

we conclude that even under the more stringent requirements of the Code of Criminal Procedure,

the trial court did not err by failing to conduct an inquiry into Nathan’s competency during the

release-or-transfer proceedings.

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On May 12, 2021, or thereabouts, 1 Nathan’s trial attorney filed a motion

suggesting that Nathan “lack[ed] the capacity to understand the proceedings in . . . juvenile court

or to assist in the child’s own defense.” The motion requested that the trial court appoint one or

more experts to examine Nathan pursuant to Article 46B of the Code of Criminal Procedure and

the Family Code to ensure his competency to proceed. Nathan’s attorney signed an affidavit

averring that he was “having great difficulty obtaining [Nathan’s] assistance in understanding

the charges and the circumstances to the extent that he could sufficiently assist . . . in his

own defense.”

The suggestion of incompetency was sworn to by Nathan’s trial counsel in

May of 2021, predating Nathan’s plea and stipulation of evidence by one year. Nathan

represents that, despite this motion, “no examination [was] conducted to determine competency.”

However, at the release-or-transfer hearing, Nathan’s TJJD file was admitted into

evidence. Included in this file were notes from Kara Oldham, a juvenile probation officer,

detailing her interactions with Nathan throughout his stay at the Hays County Juvenile Detention

Center. A May 21, 2021 note reflects that the trial court’s assistant court administrator sent an

email to Oldham, notifying her that “Dr. Michael Roman” would be conducting the “fitness to

1

Appellate counsel filed a motion to supplement the record, attached to which

was a copy of the motion discussed above. The attached motion was not file-stamped,

but the associated certificate of service indicates that trial counsel served the State with it on

May 12, 2021.

Appellate counsel represents that the Hays County Clerk’s Office routinely does not

accept “motions . . . filed in juvenile matters” and instead, litigants must file their motions

directly with the trial court responsible for hearing the matter. Because of this, appellate counsel

explained that the motion with which he sought to supplement the record came directly from

Nathan’s trial counsel. The State filed a response, indicating that it did not contest the relief

sought in Nathan’s motion to supplement the record. We therefore permitted the record to be

supplemented but cannot be certain as to when this motion was filed.

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proceed evaluation.” On June 26, 2021, Oldham noted that “Dr. Roman Michael [sic] met with

N[athan] to perform the competency evaluation.” However, a July 26, 2021 note indicates “that

the court is in the process of finding another doctor to do the exam.” A note dated August 16, 2021,

states that Oldham explained to Nathan that a second doctor would be performing an evaluation

and “the Judges [sic] office will be reaching out to the doctor as well.” Finally, Oldham’s notes

indicate that Dr. Ann Marie Hernandez, a licensed clinical psychologist, met with Nathan in

October and November of 2021 to conduct the competency evaluation and that Dr. Hernandez

tendered her report to the court in early 2022.

Although the competency evaluation itself is not in evidence, Nathan’s file

discusses the results of the evaluation, including that Dr. Hernandez ultimately found that

Nathan’s “intellectual functioning fell into the Below Average range and his intellectual

impairment is mild.” She also diagnosed Nathan with “Cannabis Use Disorder, Moderate,

Borderline Intellectual Functioning, and Depressive Disorder, Unspecified.” After the report

was provided to the trial court, the underlying proceedings continued. Cf. Tex. Fam. Code

§ 55.36(a) (“If a report submitted under Section 55.35(b) states that a child is fit to proceed, the

juvenile court shall find that the child is fit to proceed unless the child’s attorney objects” within

a certain timeframe). In the stipulation of evidence entered after the fitness to proceed evaluation

concluded, Nathan’s attorney represented that Nathan “fully” understood his rights and

“waiv[ed] said rights freely, voluntarily and intelligently.” The trial court approved the

stipulation.

Despite Nathan’s contention to the contrary, we conclude that the trial court did

conduct a competency inquiry to assess his fitness to proceed prior to the initiation of the release-

or-transfer proceedings. To the extent that there are gaps in the record, “[t]he burden is on the

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appellant to see that a sufficient record is presented to show error requiring reversal.”

Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam); see In re C.J.,

689 S.W.3d 417, 425 (Tex. App.—Dallas 2024, no pet.). And “[w]hen confronted with an

incomplete record, we presume the omitted portions are relevant to the appeal and the evidence

contained within the omitted portions of the record support the trial court’s judgment.” Hizar

v. Heflin, 672 S.W.3d 774, 788 (Tex. App.—Dallas 2023, pet. denied). Therefore, we must

presume that Dr. Hernandez’s competency evaluation supports a finding of competency. See id.;

see also Halliburton v. State, Nos. 12-04-00351-CR, 12-05-0013-CR, 2006 WL 859751, at *2

(Tex. App.—Tyler Mar. 31, 2006, no pet.) (mem. op., not designated for publication). (“[W]e

presume that the missing portions of the records contain evidence to support the trial court’s

failure to hold trials to determine Appellant’s competency to stand trial.”).

In addition to his attorney’s May 2021 suggestion of incompetency, Nathan points

to other evidence in the record indicating that he has a below-average IQ and an intellectual

disability to suggest that the trial court erred by not halting the release-or-transfer hearing to

conduct another competency inquiry. But to be entitled to a second competency inquiry, there

must be some new evidence indicating a change in the defendant’s mental state. Ashley v. State,

404 S.W.3d 672, 678 (Tex. App.—El Paso 2013, no pet.); see also Hageman v. State,

No. 03-13-00549-CR, 2015 WL 3545761, at *3 (Tex. App.—Austin June 5, 2015, no pet.)

(mem. op., not designated for publication) (“Because Hageman was formally examined and

found competent, we will conclude that the trial court abused its discretion by failing to conduct

an additional competency inquiry only if there was evidence that Hageman’s condition had

deteriorated after the trial court’s initial finding of competency.”).

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Based on the results of Dr. Hernandez’s evaluation that had already been

presented to the trial court, the fact that Nathan had a below-average IQ and intellectual

disability would not be new evidence indicating a change in Nathan’s mental state. The other

information contained in Nathan’s file indicates that there had been no deterioration in his

competency since the initial evaluation. In September 2022, Dr. William Maddox conducted a

psychological evaluation of Nathan on behalf of TJJD “to establish current psychological

functioning, and to identify any specialized treatment needs warranting consideration in

placement planning.” The resulting report indicates that Nathan’s “thought process seemed

logical and goal-directed, with no evidence of gross disorganization, loose associations, or any of

the other characteristics that are associated with psychotic disorders or severe forms of mood

disorder.” In terms of furthering his educational goals, the report detailed that Nathan “should be

able to complete the general program when given time to complete tasks especially in reading

and mathematics, and given specific directions.” The only specialized treatment recommended

was “participating in trauma counseling to address his offense and the resulting death of his

victim.” Similarly, a March 29, 2023 psychological evaluation completed by Virginia Gresham,

a licensed marriage and family therapist, also indicated that Nathan’s “thought processes

appeared linear and his thinking was logical.”

Under the Code of Criminal Procedure, the relevant questions for determining an

individual’s competency are whether that individual has a “sufficient present ability to consult

with the person’s lawyer with a reasonable degree of rational understanding” and “a rational as

well as factual understanding of the proceedings against the person.” Tex. Code Crim. Proc.

art. 46B.003(a) (emphasis added). And under the Family Code, the trial court must determine

whether probable cause exists to believe that the juvenile “lacks capacity to understand the

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proceedings in juvenile court or to assist in the child’s own defense.” Tex. Fam. Code

§ 55.31(a), (c). “Evidence relevant to these issues includes whether a defendant can:

(1) understand the charges against him and the potential consequences of the pending criminal

proceedings; (2) disclose to counsel pertinent facts, events, and states of mind; (3) engage in a

reasoned choice of legal strategies and options; (4) understand the adversarial nature of criminal

proceedings; (5) exhibit appropriate courtroom behavior; and (6) testify.” Bluntson v. State,

No. AP-77,067, 2025 WL 1322702, at *7 (Tex. Crim. App. May 7, 2025) (first citing Morris

v. State, 301 S.W.3d 281, 286 (Tex. Crim. App. 2009); and then citing Tex. Code Crim. Proc.

art. 46B.024).

Nathan’s TJJD file indicates that he experienced symptoms of depression and

anxiety surrounding the July 2023 hearing, and that he was having difficulty understanding the

treatment options available to him through TJJD. However, there is no evidence in the record

indicating that, at or near the time of the release-or-transfer hearing, Nathan was struggling to

comprehend the nature of the proceedings against him or assist in his own defense. See Tex.

Code Crim. Proc. art. 46B.003(a); Tex. Fam. Code § 55.31; In re C.D.M., No. 06-21-00118-CV,

2022 WL 4374982, at *3 (Tex. App.—Texarkana Sep. 22, 2022, pet. denied) (mem. op.)

(“Significantly, there was no testimony and no indication in the psychological evaluation report

that C.D.M.’s mental health issues or his mildly impaired intellectual functioning impaired his

capacity to understand the juvenile proceedings or to assist in his own defense.”). Accordingly,

we conclude that the trial court did not abuse its discretion by failing to conduct an additional

competency inquiry during the release-or-transfer proceedings. We overrule Nathan’s first issue.

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III. DECISION TO TRANSFER

By his second issue, Nathan contends that the trial court abused its discretion in

transferring him to TDCJ because TJJD did not sufficiently accommodate his intellectual

disability and hindered his ability to successfully rehabilitate.

A. Standard of Review & Applicable Law

Once TJJD refers a person to “the juvenile court for a transfer, the juvenile court

is required to hold a hearing to determine whether to transfer the person to the custody of TDCJ

for the completion of the person’s sentence.” In re J.J., 276 S.W.3d 171, 178 (Tex. App.—

Austin 2008, pet. denied) (citing Tex. Fam. Code § 54.11(a), (i)).

In making this determination, the court considers a number of factors, including:

(i) the experiences and character of the person before and after commitment

to TJJD;

(ii) the nature of the penal offense that the person was found to have

committed and the manner in which the offense was committed;

(iii) the abilities of the person to contribute to society;

(iv) the protection of the victim of the offense or any member of the

victim’s family;

(v) the recommendations of TJJD and the prosecuting attorney;

(vi) the best interests of the person; and

(vii) any other relevant factor.

Tex. Fam. Code § 54.11(k). “The juvenile court is not required to consider all of the factors, and

the court is expressly allowed to consider unlisted but relevant factors.” In re J.J., 276 S.W.3d

at 178.

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We review the trial court’s decision to transfer a juvenile from TJJD to TDCJ for

an abuse of discretion. Id. “If ‘some evidence’ exists to support the juvenile court’s decision,

there is no abuse of discretion.” Id. (first citing In re F.D., 245 S.W.3d 110, 113 (Tex. App.—

Dallas 2008, no pet.); then citing In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio

2006, pet. denied); and then citing In re R.G., 994 S.W.2d 309, 312 (Tex. App.—Houston [1st

Dist.] 1999, pet. denied)).

B. Analysis

Nathan attributes his failure to make substantial progress towards rehabilitation on

the lack of accommodations provided to him by TJJD. And, indeed, several witnesses testified

that Nathan could have made more progress at TJJD if certain accommodations were provided.

But in its letter recommending the transfer that was admitted into evidence, TJJD opined

that Nathan

has not completed any of his specialized treatments due to his negative,

disruptive, and assaultive behaviors. He has been provided numerous

opportunities by TJJD staff at various facilities to espouse change. He has

incurred multiple major rule violations, with the majority of them being

aggressive in nature, resulting in a placement in a violence continuum program

(RDP). Given his minimal progress, his impulsive and disruptive behaviors, after

receiving multiple interventions, and threatening behaviors, he has provided little

evidence he will have a favorable prognosis in regards to meeting parole

expectations. N[athan]’s behavior and refusal to comply with a reasonable

request suggest that he is a danger to the community; therefore, a

recommendation for transfer to TDCJ[] is recommended for the protection of

the community.

The trial judge is the sole determiner of credibility and may resolve conflicts in

the evidence as it sees fit. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).

“Reviewing courts cannot impose their own opinions to the contrary.” Id.

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In total, during his time with TJJD, Nathan had seventeen incidents reported on

his record. Six of these incidents resulted in Nathan being admitted to a special program

“for youth that are . . . so disruptive that it causes problems with the staff.” As recently as

May 31, 2023, less than two months before the release-or-transfer hearing, Nathan was written

up for “touching and fondling” another child.

Even if TJJD could have and should have done a better job of accommodating

Nathan’s intellectual disability, on this record, we cannot say that the trial court abused its

discretion by transferring Nathan to TDCJ. See In re J.J., 276 S.W.3d at 180 (undisputed

evidence that juvenile “engaged in violent, assaultive behavior on multiple occasions” weighed

in favor of trial court’s decision to transfer juvenile to TDCJ). Accordingly, we overrule

Nathan’s second issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

__________________________________________

Maggie Ellis, Justice

Before Justices Theofanis, Crump, and Ellis

Affirmed

Filed: July 30, 2025

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