in the Matter of R.S.

              In the
         Court of Appeals
 Second Appellate District of Texas
          at Fort Worth
       ___________________________
            No. 02-22-00165-CV
       ___________________________

          IN THE MATTER OF R.S.



    On Appeal from the 323rd District Court
            Tarrant County, Texas
        Trial Court No. 323-118013-22


Dissenting Memorandum Opinion by Justice Walker
                   DISSENTING MEMORANDUM OPINION

       I write to respectfully dissent because I believe the evidence in this admittedly

difficult case was sufficient to support the trial court’s order.

       As the majority explains, we are tasked here with determining whether the trial

court abused its discretion in finding that community resources could not meet R.S.’s

behavioral-health or other special needs without sufficient evidence to support that

finding. See 

; In re D.T., No. 02-20-00312-CV, 

, at *1 (Tex. App.—Fort Worth Oct. 28, 2021, no pet.) (mem. op.). The

majority also explains that a trial court does not abuse its discretion if at least some

probative and substantive evidence exists to support its decision or if the decision is

based on conflicting evidence. See D.T., 

 at *1. I believe that

enough such evidence existed here to support the trial court’s finding.

       It is undisputed that R.S. had performed well in detention. It is also undisputed

that his psychiatrist, and even the State, recommended that R.S. be sent to a secure

facility, in lieu of TJJD, where R.S. could take advantage of certain educational and

therapeutic services. However, the trial court was also presented with the following

evidence:

   • R.S.’s intake officer testified that R.S. had not been successfully rehabilitated
     after his probation for unlawfully carrying a firearm.

   • After he completed his probation, R.S. committed another, more violent
     offense in which he held a family at gunpoint in a premeditated robbery
     scheme.


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   • On another occasion, also after he had completed probation, R.S. took the
     same gun—which he claimed to have purchased from a homeless man—to
     school and ended up getting shot in the finger. He denied under oath having
     loaded the gun.

   • R.S.’s psychiatrist concluded that R.S. was in a “high-risk category for future
     violence” due to his aggressive and assaultive history and his limited ability to
     cope with stress. Further, it was “possible” that R.S.—with time, support, and
     proper motivation—“may positively respond” to strictly supervised, long-term,
     and therapeutic treatment in a residential facility.

      I would hold that this evidence was sufficient for the trial court to have

reasonably found that R.S.’s needs—namely his behavioral needs related to his risk for

violence—could not have been met in either of the proposed community facilities.

Probation did not reform R.S., and placing R.S. into one of the community facilities

would have meant—albeit under more restrictive terms—placing R.S. back on

probation. Not only was R.S. not reformed by probation, his criminal and violent

behavior had actually escalated to the point that he had held children at gunpoint in a

premeditated robbery scheme and had his own finger shot after he took a gun to

school. The dubious testimony offered by R.S. to explain how he obtained the gun,

and who loaded the gun before he was shot, could have been viewed by the trial court

as attempts to deceive and lessen his culpability rather than to take responsibility for

his actions. And, R.S.’s psychiatrist had concluded that it would take considerable

time, effort, and motivation for R.S. to have had a chance at rehabilitation even within

the secure community facility.




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      The trial court could have reasonably concluded from this evidence that R.S.

was so predisposed to violent behavior and had so strikingly failed to be rehabilitated

by his first probation, that the proposed community resources could not have met his

behavioral needs. For these reasons, I respectfully dissent and would affirm the trial

court’s order.

                                                     /s/ Brian Walker

                                                     Brian Walker
                                                     Justice

Delivered: December 8, 2022




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