ATS v. State

694 S.W.2d 252
CourtCourt of Appeals of Texas
DecidedJuly 25, 1985
Docket2-84-276-CV
StatusPublished

This text of 694 S.W.2d 252 (ATS v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ATS v. State, 694 S.W.2d 252 (Tex. Ct. App. 1985).

Opinion

694 S.W.2d 252 (1985)

In the Matter of A.T.S. a/k/a T.B., Appellant,
v.
The STATE of Texas, Appellee.

No. 2-84-276-CV.

Court of Appeals of Texas, Fort Worth.

July 25, 1985.

*253 Vick, Trammell & Reese and Phillip O. Vick, Denton, for appellant.

Jerry Cobb, Crim. Dist. Atty., and Jim E. Crouch, Asst. Crim. Dist. Atty., Denton, for appellee.

Before the court en banc.

OPINION

HILL, Justice.

A.T.S., a juvenile, appeals from the order of the trial court certifying him for trial as an adult for the offense of burglary of a habitation.

A.T.S. presents three points of error, including a point in which he asserts that there was no evidence or insufficient evidence to support the trial court's findings with respect to the factors to be considered by the trial court in connection with the motion to transfer.

We reverse and remand, because we find that there is insufficient evidence to support the granting of the motion.

Findings of fact entered in a case tried to the court are of the same force and dignity as a jury's verdict upon special issues. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App. —Houston [14th Dist.] 1977, writ ref'd n.r. e.). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them, First Nat. Bank in Dallas v. Kinabrew, 589 S.W.2d 137, 146 (Tex.Civ.App.—Tyler 1979, writ ref'd n.r.e.), by the same standards as are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a special issue. Okon v. Levy, 612 S.W.2d 938, 941 (Tex.Civ.App.— Dallas 1981, writ ref'd n.r.e.).

In deciding a challenge to the legal sufficiency of the evidence (a "no evidence" point), we must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. See Stedman v. Georgetown Savings and Loan Ass'n, 595 S.W.2d 486, 488 (Tex.1979). If there is any evidence of probative force to support the challenged finding, then it must be upheld. Id.

Where the factual sufficiency of the evidence to support a finding is challenged (an "insufficient evidence" point), we must consider all the evidence in support of and contrary to the challenged finding to determine if the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951); City of Lubbock v. South Plains Electric Cooperative, Inc., 593 S.W.2d 138, 143 (Tex.Civ. App.—Amarillo 1979, writ ref'd n.r.e.).

*254 In a juvenile court transfer proceeding, the burden is upon the prosecuting attorney to present evidence which will form the basis of the court's decision. B.R.D. v. State, 575 S.W.2d 126, 131 (Tex. Civ.App.—Corpus Christi 1978, writ ref'd n.r.e.). The purpose of the proceeding is to determine whether it is in the best interest of the child and of society to retain jurisdiction in the juvenile court or to transfer him to district court for adult criminal proceedings. Id. To facilitate this decision, the legislature has provided criteria for the court to consider. TEX.FAM.CODE ANN. sec. 54.02(f) (Vernon 1975) sets forth the elements for consideration by the court in its decision to waive jurisdiction and transfer the case for criminal proceedings:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

Id. While the court must consider all of these factors, it need not find that they have all been established. L.M. v. State, 618 S.W.2d 808, 813 (Tex.Civ.App.—Houston [1st Dist.] 1981, no writ); P.G. v. State, 616 S.W.2d 635, 639 (Tex.Civ.App.—San Antonio 1981, writ ref'd n.r.e.). In order to transfer the case, the trial court must conclude that the seriousness of the offense or the background of the child and welfare of the community requires criminal proceedings. J.D.P. v. State, 609 S.W.2d 868, 870 (Tex.Civ.App.—Texarkana 1980, no writ); TEX.FAM.CODE ANN. sec. 54.02(a)(3) (Vernon 1975).

The trial court in this cause made findings with respect to all six of the factors to be considered. It found that:

1) the offense is an offense against property;

2) the offense was committed in an aggressive manner as indicated by the evidence of destruction of personal property and damage to the premises of the habitation in question;

3) there is sufficient evidence on which a grand jury may be expected to return an indictment;

4) A.T.S. is sufficiently mature and sophisticated to understand and appreciate his legal rights and the nature of the accusation made against him, and to communicate with his attorney in order to receive the effective assistance of counsel;

5) the prior record and history of A.T.S., specifically the history of truancy, indicates a lack of proper adjustment and discipline;

6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of A.T.S. would not be substantially increased by the court's retention of juvenile jurisdiction. The procedures, services, and facilities shown to be available to the juvenile court for the time available for A.T.S. in the juvenile system would not be sufficient for the rehabilitative needs of A.T.S. due to the brief remaining period of time that such procedures, services, and facilities would be utilized.

We will discuss the evidence with respect to each factor.

NATURE OF THE OFFENSE

It is undisputed that the offense is an offense against property.

AGGRESSION AND PREMEDITATION

Officer Frank Mills, an investigator in the juvenile division of the police department for the City of The Colony, testified that the burglarized home had been ransacked. Furniture, cushions, lamps, and *255 other items in the living room had been thrown about and turned over. A watermelon had been smashed on the floor and thrown about on the carpet and sofa.

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Related

First National Bank in Dallas v. Kinabrew
589 S.W.2d 137 (Court of Appeals of Texas, 1979)
City of Clute v. City of Lake Jackson
559 S.W.2d 391 (Court of Appeals of Texas, 1977)
In Re King's Estate
244 S.W.2d 660 (Texas Supreme Court, 1951)
City of Lubbock v. South Plains Electric Cooperative, Inc.
593 S.W.2d 138 (Court of Appeals of Texas, 1979)
Okon v. Levy
612 S.W.2d 938 (Court of Appeals of Texas, 1981)
Garcia v. Garcia De Ortiz
257 S.W.2d 804 (Court of Appeals of Texas, 1953)
B. R. D. v. State
575 S.W.2d 126 (Court of Appeals of Texas, 1978)
Stedman v. Georgetown Savings & Loan Ass'n
595 S.W.2d 486 (Texas Supreme Court, 1979)
In Re Q. D.
600 S.W.2d 392 (Court of Appeals of Texas, 1980)
P. G. v. State
616 S.W.2d 635 (Court of Appeals of Texas, 1981)
L. M. v. State
618 S.W.2d 808 (Court of Appeals of Texas, 1981)
E. D. N., Matter Of
635 S.W.2d 798 (Court of Appeals of Texas, 1982)
A.T.S. v. State
694 S.W.2d 252 (Court of Appeals of Texas, 1985)

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Bluebook (online)
694 S.W.2d 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ats-v-state-texapp-1985.