PD-0640-15 May 28, 2015
NO. __________________________
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS ______________________________
JOHN GONZALES, III, Appellant
vs.
THE STATE OF TEXAS ______________________________
Petition in Cause No. 2013-CR-7917 From the 386th District Court of Bexar County, Texas, And Appeal No. 04-14-00352-CR From the Court of Appeals for the Fourth Court of Appeals District of Texas ______________________________
PETITION FOR DISCRETIONARY REVIEW ______________________________
MICHAEL D. ROBBINS Assistant Public Defender Paul Elizondo Tower 101 W. Nueva, Suite 310 ORAL ARGUMENT REQUESTED San Antonio, Texas 78205 (210) 335-0701 Fax (210) 335-0707 mrobbins@bexar.org Bar No. 16984600
ATTORNEY FOR APPELLANT
i Identity of Parties and Counsel
Pursuant to TEX. R. APP. P. 38.1(a), the parties to this suit are as
follows:
(1) John Gonzales, III, TDCJ #01927323, Gib Lewis Unit, 777 F.M.
3497, Woodville, Texas 75990, is the appellant and was the defendant in trial
court.
(2) The State of Texas, by and through the Bexar County District
Attorney’s Office, Paul Elizondo Tower, 101 W. Nueva St., San Antonio, Texas
78205, is the appellee and prosecuted this case in the trial court.
The trial attorneys were as follows:
(1) John Gonzales, III, was represented by Tony Jimenez, III, and Cathy
Valenzuela, 214 Dwyer Ave, Suite 315, San Antonio, Texas 78204.
(2) The State of Texas was represented by Susan D. Reed (succeeded by
Nicholas Lahood), District Attorney, and Rose Zebell, Jill Mata, and Letty
Cortez, Assistant District Attorneys, 235 E. Mitchell Rd., San Antonio, Texas
78210. Ms. Mata has since become the Texas Juvenile Justice Department General
Counsel, P.O. Box 12757, Austin, Texas 78711.
The appellate attorneys are as follows:
ii (1) John Gonzales, III, is represented by Michael D. Robbins, Assistant
Public Defender, Paul Elizondo Tower, 101 W. Nueva St., Suite 310, San Antonio,
Texas 78205.
(2) The State of Texas is represented by the Nathan Morey, Assistant
District Attorney, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St.,
Suite 710, San Antonio, Texas 78205.
The trial judge was Hon. Laura Parker, 386th District Court, 235 E.
Mitchell Rd., San Antonio, Texas 78210.
The Fourth Court of Appeals decided this case in a panel consisting of Hon.
Patricia O. Alvarez, Hon. Luz Alena D. Chapa, and Hon. Jason Pulliam,
Associate Justices, Fourth Court of Appeals, Cadena-Reeves Justice Center, 300
Dolorosa St., Suite 3200, San Antonio, Texas 78205. The opinion was written by
Hon. Patricia O. Alvarez
iii Table of Contents
Page
Identities of Parties and Counsel . . . . . . . ii
Table of Contents . . . . . . . . . . iv
Index of Authorities . . . . . . . . . v
A Note Regarding Record References . . . . . . . vi
Word Count . . . . . . . . . . . vi
Introduction . . . . . . . . . . . 1
Statement Regarding Oral Argument . . . . . . . 1
Statement of the Case . . . . . . . . . 1
Statement of Procedural History . . . . . . . 2
Ground for Review . . . . . . . . . 2
GROUND FOR REVIEW The court of appeals erred when it found that the juvenile court’s order of waiver and transfer to criminal court was sufficient, because the order was generic boilerplate and was not case-specific, as required by Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014).
Argument . . . . . . . . . . . 3
Prayer for Relief . . . . . . . . . . 12
Certificate of Service . . . . . . . . . 13
Appendix . . . . . . . . . . . 14
iv Index of Authorities
Statutes
TEX. CODE CRIM. PROC. art. 44.47 . . . . . . . 3,6
TEX. FAM. CODE § 54.02 . . . . . . . . passim
TEX. FAM. CODE § 56.02 . . . . . . . . . 6
TEX. PENAL CODE § 19.02 . . . . . . . . 3
Rules
TEX. R. APP. P. 9.4 . . . . . . . . . . vi
TEX. R. APP. P. 9.5 . . . . . . . . . . 13
TEX. R. APP. P. 38.1 . . . . . . . . . ii
TEX. R. APP. P. 66.3 . . . . . . . . . 4
TEX. R. APP. P. 68.2 . . . . . . . . . 2
TEX. R. APP. P. 68.11 . . . . . . . . . 13
Cases
Bleys v. State, 319 S.W.3d 857 (Tex. App. – San Antonio 2010, no pet.) . 11
Faisst v. State, 105 S.W.3d 7 (Tex. App. – Tyler 2003, no pet.) . . . 7
Gonzales v. State, No. 04-14-00352-CR, 2015 Tex. App. LEXIS 4571 (Tex. App. – San Antonio May 6, 2015, pet. filed)(designated for publication) . . . . . . . . . . . passim
Moon v. State, 452 S.W.3d 28 (Tex. Crim. App. 2014) . . . passim
v vi A Note Regarding Record References
In this brief, references to the six-volume reporter’s record will be thus: (RR
3, 45); and to the clerk’s record will be thus: (CR, ___).
Word Count
Pursuant to TEX. R. APP. P. 9.4(i)(2)(D), the word count, from the beginning
of the Argument until, but excluding, the signature block, is: 2,209. The Bexar
County Appellate Public Defender’s Office uses Microsoft Word 2010.
vii TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
John Gonzales, III petitions this Honorable Court to review the judgment
affirming his conviction for murder in Cause No. 2013-CR-7917.
Statement Regarding Oral Argument
The Appellant, John Gonzales, III, requests oral argument before the Court
of Criminal Appeals of Texas, because oral argument will assist the Court in
determining whether the court of appeals erred when it determined that the order of
waiver of juvenile jurisdiction and transfer to criminal court was sufficiently
detailed in light of this Honorable Court’s opinion in Moon v. State, 451 S.W.3d.
28 (Tex. Crim. App. 2014).
Statement of the Case
The Appellant was charged as a juvenile with the offense of murder. The
juvenile court waived its jurisdiction and transferred the case to criminal court.
Appellant was indicted for capital murder. He pleaded nolo contendere to the
reduced charge of murder under a plea bargain, and was sentenced by the trial
court to 20 years in the Texas Department of Criminal Justice. The Court of
Appeals for the Fourth Court of Appeals District of Texas affirmed the judgment
and sentence, on May 6, 2015, in an opinion designated for publication.
1 Statement of Procedural History
A three-justice panel of the court of appeals rendered its opinion on May 6,
2015. Gonzales v. State, No. 04-14-00352-CR, 2015 Tex. App. LEXIS 4571 (Tex.
App. – San Antonio May 6, 2015, pet. filed)(designated for publication). No
motion for rehearing was filed by Appellant. Pursuant to Rule 68.2(a) of the Texas
Rules of Appellate Procedure, this petition is e-filed with the clerk of the Court of
Criminal Appeals within thirty (30) days after the judgment of the Court was
rendered, on May 27, 2015.
Ground for Review
The court of appeals erred when it found that the juvenile court’s order of
waiver and transfer to criminal court was sufficient, because the order was generic
boilerplate and was not case-specific, as required by Moon v. State, 451 S.W.3d 28
(Tex. Crim. App. 2014).
2 Argument
Introduction.
This criminal case began as a juvenile case. On September 26, 2012, the
State filed a petition for waiver of jurisdiction and discretionary transfer to
criminal court in Cause No. 2012-JUV-01569, charging John Gonzales, III, with
murder. 1 (CR, 6-7). The case proceeded to certification hearing on the State’s
petition. Following a contested hearing, the juvenile court waived its jurisdiction
and transferred this case to criminal court. (CR, 19-24; RR 2, 80-81).
Mr. Gonzales was subsequently indicted for capital murder, in Cause No.
2013-CR-7917. (CR, 32). Appellant pleaded no contest to the reduced charge of
murder, with a plea bargain recommending a cap of 20 years. (CR, 73; RR 4, 7).
The trial court sentenced Mr. Gonzales to 20 years’ imprisonment. (CR, 99-100;
RR 5, 84). The trial court correctly certified that this is a plea bargained case but
that Mr. Gonzales has the right to appeal pretrial orders. (CR, 101). 2 Mr.
Gonzales timely filed notice of appeal. (CR, 105-1106).
Reasons for granting review.
In finding that the order of transfer was sufficient under Moon v. State, the
court of appeals has decided an important question of state law in a way that
1 TEX. PENAL CODE §§ 19.02(b)(1) & (b)(2). 2 He has the right to appeal the certification and transfer order by virtue of TEX. CODE CRIM. PROC. art. 44.47(b).
3 conflicts with an applicable decision of the Court of Criminal Appeals. TEX. R.
APP. P. 66.3(c). Furthermore, the decision of the court of appeals apparently
expanded the limits of Moon v. State, which is such a recent case that those limits
have not been interpreted by this Honorable Court. Therefore, the court of appeals
has decided an important question of state law that has not been, but should be,
settled by the Court of Criminal Appeals. TEX. R. APP. P. 66.3(a).
The salient facts.
This petition concerns the hearing and order waiving juvenile jurisdiction
and transferring this case to adult court. Therefore, the statement of facts in the
petition will limit itself only to the facts salient to this ground for review.
On September 26, 2012, the State filed its original petition for waiver of
jurisdiction and discretionary transfer to criminal court, in Cause No. 2012-JUV-
01569. The petition alleged that John Gonzales, III, was 16 years of age, having
been born on August 27, 1996. It further alleged that on or about August 13, 2012,
Mr. Gonzales committed the offense of murder against James Whitley. The
petition sought transfer to criminal court pursuant to TEX. FAM. CODE § 54.02(a).
(CR, 6-7). Mr. Gonzales was served with the petition and summons on October 2,
2012, and his parents were served on October 4, 2012. (CR, 10, 12, 13).
Pursuant to TEX. FAM. CODE § 54.02(d), the State requested a psychological
examination, diagnostic study, social evaluation, and investigation of Mr.
4 Gonzales’s circumstances, which was granted by the court. (CR, 8-9). The
evaluation and report was prepared by Heather Holder, Psy.D., and was filed in the
case. (CR, 14-18; RR 6, SX2). In addition, a discretionary transfer hearing report
was prepared by Traci Geppert, a juvenile probation officer, and was duly filed in
the case. (RR 6, SX1).
The certification and transfer hearing was held on October 19, 2012, in the
386th District Court of Bexar County, Texas, Hon. Laura Parker, presiding. (RR 2,
1). After hearing testimony and arguments, and considering the documents filed in
the record of the case, the trial court waived its juvenile jurisdiction and transferred
the case to criminal court. (CR, 19-24; RR 2, 80-81).
The salient facts underlying this appeal may be found in the Factual
Background section of the court of appeals’ opinion. Gonzales v. State, 2015 Tex.
App. LEXIS 4571 at *1-*6.3 Following the closing of testimony and argument of
counsel, the trial court granted the State’s motion to waive juvenile jurisdiction and
transfer the case to criminal court. (CR, 19-24; RR 2, 80-81).
The court of appeals’ holding.
Appellant filed his opening brief in this case on October 8, 2014, prior to
this Honorable Court’s opinion in Moon v. State. As a result of the Moon decision,
3 The original slip opinion and signed judgment of the court of appeals is attached to this petition, but references to the opinion are to the LEXIS rendition.
5 Appellant re-formulated his argument in his reply brief, which was filed on
January 15, 2015. The re-formulated argument was presented during oral
arguments, and was accepted, if not sustained, by the court of appeals as
Appellant’s argument.
The court of appeals found that the trial court’s finding, in its transfer order,
were “substantially more case-specific than the findings analyzed in Moon.”
Gonzales, 2015 Tex. App. LEXIS 4571 at *15. Because it felt that the trial court’s
findings were specific as to Mr. Gonzales, the court of appeals overruled
Appellant’s argument that the evidence was insufficient to support the order of
waiver and transfer. Id. at *15-*16.
Appeal of a certification and transfer hearing.
The procedures for a waiver of juvenile court jurisdiction and transfer of
jurisdiction to adult court are set forth in Section 54.02 of the Texas Family Code.
“On transfer of the person for criminal proceedings, the person shall be dealt with
as an adult and in accordance with the Code of Criminal Procedure.” TEX. FAM.
CODE § 54.02(h). Accordingly, appeals of transfer hearings are not governed by
TEX. FAM. CODE § 56.02. Instead, the appeal is governed by the criminal statutes,
and must be filed only in conjunction with the appeal of an order of deferred
adjudication or a conviction by the criminal court. TEX. CODE CRIM. PROC. art.
44.47(b).
6 “In order to transfer a juvenile to adult court, the court must find that (1)
there is probable cause to believe that the juvenile committed the offense alleged in
the petition, and (2) because of the seriousness of the offense alleged or the
background of the child, the welfare of the community requires criminal
prosecution.” Faisst v. State, 105 S.W.3d 7, 11 (Tex. App. – Tyler 2003, no
pet.)(citing TEX. FAM. CODE § 54.02(a)(3)).
Section 54.02(f) of the Family Code sets out the criteria which the court
must consider: (1) whether the offense was against the person or property, with
greater weight in favor of transfer given to offenses against the person; (2) the
sophistication and maturity of the child; (3) the record and previous history of the
child; and (4) the prospects of adequate protection of the public and the likelihood
of rehabilitation of the child by use of procedures, services, and facilities currently
available to the juvenile court. The juvenile court must consider all of these
factors, but it is not required to find the each factor is established by the evidence.
Faisst, 105 S.W.3d at 11. Also, as long as each factor is considered, the court is not
required to give each factor equal weight. Id. Finally, a court does not abuse its
discretion in findings that the welfare of the community requires the transfer, based
on the seriousness of the crime alone. Id.
7 The Moon standard of review.
This Honorable Court recently defined the proper standard of appellate
review for waiver and transfer cases in Moon v. State, 451 S.W.3d 28 (Tex. Crim.
App. 2014). “[I]n evaluating a juvenile court’s decision to waive its jurisdiction,
the appellate court should first review the juvenile court’s specific findings of fact
regarding the Section 54.02(f) factors under ‘traditional sufficiency of the evidence
review.’” Id. at 47. This may include both legal and factual sufficiency review. Id.
at 44-45.
The appellate court should then review the juvenile court’s ultimate waiver
of jurisdiction under an abuse of discretion standard. “That is to say, in deciding
whether the juvenile court erred to conclude that seriousness of the offense alleged
and/or the background of the juvenile called for criminal proceedings for the
welfare of the community, the appellate court should simply ask, in light of its own
analysis of the sufficiency of the evidence to support the Section 54.02(f) factors
and any other relevant evidence, whether the juvenile court acted without reference
to guiding rules and principles. In other words, was its transfer decision essentially
arbitrary, given the evidence upon which it was based, or did it represent a
reasonably principled application of the legislative criteria?” Id. at 47.
This Court expressly disapproved of the tendency of trial courts to use
boilerplate undetailed findings of fact. The trial court “should take pains to ‘show
8 its work,’ as it were, by spreading its deliberative process on the record, thereby
providing a sure-footed and definite basis from which an appellate court can
determine that its decision was in fact appropriately guided by the statutory criteria
….” Id. at 49. The statutory process is poorly served by a transfer order “so lacking
in specifics that the appellate court is forced to speculate” about the trial court’s
reasons for transfer. Id. The reviewing court must therefore limit its sufficiency
review to the facts the juvenile court expressly relied on, as required to be
explicitly set out in its transfer order under Section 54.02(h). Id. at 50.
The order of transfer in this case lacks specificity.
The court of appeals addressed similar issues in this case. The court
compared the waiver and transfer order in this case with the one in Moon, and
found that the findings here was specific enough. Gonzales, 2014 Tex. App.
LEXIS 4571 at *15. The court listed the 11 findings made in by the juvenile court
in this case and found that they passed muster. Id. at *14-*15. Most of these
findings were generic, and those which mentioned this particular case apparently
filled in the blanks from a template form order.
Appellant contends that the intent of Moon’s direction that the juvenile court
to “show its work” was to have the case-specific, detailed reasons for transfer
spread out in the transfer order. The court of appeals “showed its work” in
Gonzales, by going into detail about the facts of this case which supported the
9 Section 54.02(f) factors. Id. at *10-*14. The trouble was that the juvenile court’s
transfer order did not go into nearly so much detail as the court of appeals.
The transfer order nowhere states that this was a planned robbery of a drug
dealer which became a murder. Id. at *10-*11. Nowhere does the order state that
the probation officer’s meetings with Appellant and his family indicated to her that
Appellant had a level of understanding of the case to support the finding that he
was mature and sophisticated enough to justify the waiver. Id. at *11. Nowhere
does the order state that Dr. Heather Holder evaluated Mr. Gonzales and concluded
that he had the requisite sophistication and maturity to be tried as an adult for
murder. Id. Nowhere does the order reflect that Appellant’s mother described her
son as being very much in control. Id. at *11-*12.
The order of waiver is silent about Mr. Gonzales’s prior juvenile and
educational record. Id. at *12. It is also silent regarding the letters in Appellant’s
favor written by personnel at his school. Id. There is nothing in the order about Mr.
Gonzales’s home situation. The order is silent about the fact that his mother
thought he was home at the time of the incident. Id. at *13. There is no mention in
the order regarding Mr. Gonzales’s health issues or his behavior in detention. Id.
The order goes not mention that Ms. Geppert did not believe that the juvenile
system or determinate sentencing would be prior, due to time constraints and the
10 seriousness of the case. Id. at *13-*14. Nor does it make mention of the positive
factors in Traci Geppert’s discretionary transfer hearing report. (RR 6, SX1).
Prior to Moon, it would have been sufficient for an appellate court to look at
the case record and plug facts from that record into its discussion of the Section
54.02(f) factors. C.f., Bleys v. State, 319 S.W.3d 857, 858-60 (Tex. App. – San
Antonio 2010, no pet.). However, Moon demands more. It demands “that a
reviewing court should measure the sufficiency of the evidence to support the
juvenile court’s stated reasons for transfer by considering the sufficiency of the
evidence to support the facts as they are expressly found by the juvenile court in its
certified order.” Moon, 451 S.W.3d at 49-50 (emphasis added). “The appellate
court should not be made to rummage through the record for facts that the juvenile
court might have found, given the evidence developed at the hearing, but did not
include in its written transfer order.” Id. at 50 (emphasis in original).
This demand was not met in the present case. Although the court of appeals
“rummaged through” the record to justify its decision, the juvenile court did not
“show its work.” Accordingly, the meagre facts that were listed in the order of
waiver and transfer did not support the order. The opinion of the court of appeals is
directly in conflict with the opinion in Moon. The outer limits of this Court’s
opinion in Moon have not been defined, but the court of appeals has exceeded
those limits, based on any rational reading of Moon.
11 Prayer For Relief
For the reasons herein alleged, the court of appeals erred in overruling
Appellant’s First Point of Error in Appeal No. 04-14-00352-CR. Therefore,
Appellant prays this Honorable Court grant this petition, order briefing, and upon
reviewing the judgment entered below, vacate the judgment of the court of appeals,
dismiss the criminal prosecution, and find that the case remains pending in the
juvenile court. Moon, 451 S.W.3d at 52 n. 90.
Respectfully submitted,
/s/ Michael D. Robbins MICHAEL D. ROBBINS Assistant Public Defender Paul Elizondo Tower 101 W. Nueva, Suite 310 San Antonio, Texas 78205 (210) 335-0701 Fax (210) 335-0707 mrobbins@bexar.org Bar. No. 16984600 ATTORNEY FOR APPELLANT
12 Certificate of Service
I HEREBY CERTIFY that, pursuant to Rules 9.5 and 68.11 of the Texas Rules of Appellate Procedure, a true and correct copy of the above and foregoing Petition for Discretionary Review has been served by e-mail on Mr. Nathan Morey, Assistant District Attorney, Paul Elizondo Tower, 101 W. Nueva, Suite 710, San Antonio, Texas 78205; and has been sent by first-class U.S. mail to the State Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711; on this 27th day of May, 2015.
/s/ Michael D. Robbins MICHAEL D. ROBBINS Assistant Public Defender
13 Appendix
Opinion of the Court of Appeals for the Fourth Court of Appeals District of
Texas, John Gonzales, III v. State of Texas, No. 04-14-00352-CR, 2015 Tex.
App. LEXIS 4571 (Tex. App. – San Antonio May 6, 2015, pet. filed)(designated
for publication).
14 Fourth Court of Appeals San Antonio, Texas OPINION No. 04-14-00352-CR
JOHN GONZALES III, Appellant
v.
The STATE of Texas, Appellee
From the 386th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR7917 Honorable Laura Parker, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice
Delivered and Filed: May 6, 2015
AFFIRMED
This case stems from an aggravated robbery resulting in the murder of James Whitley.
Appellant John Gonzales III was a juvenile at the time of the offense. Upon motion by the State,
the juvenile court waived jurisdiction and transferred the matter to criminal court. After
Gonzales’s motion to suppress was denied, he entered a plea of guilty and was sentenced by the
trial court to twenty-years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice. On appeal, Gonzales contends the juvenile court erred in transferring jurisdiction 04-14-00352-CR
and the criminal court erred in denying his motion to suppress. We affirm the trial court’s
judgment.
FACTUAL BACKGROUND
On August 13, 2012, David Estrada and Appellant Gonzales went to an apartment complex
to purchase marijuana from James Whitley. Gonzales was fifteen-years-old at the time. Gonzales
exchanged several phone calls with Whitley regarding the purchase of the marijuana. Before going
to the apartment complex, Gonzales and Estrada decided to rob Whitley of the marijuana.
Gonzales brought his Smith & Wesson .40 caliber semi-automatic firearm for purposes of the
robbery.
Estrada and Gonzales were driven to the apartment complex by a third individual who did
not know of their plans and did not know Gonzales brought a firearm to the meeting. When they
arrived at the apartment complex, Estrada and Gonzales met Whitley and another individual, Pablo
Pecina, by the washroom. Gonzales asked for the drugs and Whitley asked for the money. Estrada
stalled and Gonzales lifted his shirt and pulled out his firearm. To Gonzales’s surprise, Whitley
also pulled a weapon and both men fired.
Whitley was struck in the thigh and died from his injuries; the bullet that struck Gonzales
grazed his head, requiring a couple of staples. Gonzales and Estrada ran back to the vehicle and
Gonzales asked the driver to take him to the hospital. Instead, the driver pulled into a gas station
a short distance away. The driver called 911, told the dispatch, “Hey, my friend’s been shot. Here
he is,” and he and Estrada left. Before leaving, Gonzales gave Estrada the firearm and told him to
get rid of it.
While the San Antonio police officers were investigating Whitley’s shooting, they received
the call of Gonzales’s shooting. It was not until later that the officers realized the two gunshot
victims were connected. When officers arrived at the gas station, Gonzales reported “We were -2- 04-14-00352-CR
walking down the street, somebody drives by and shoots me.” While they were investigating,
Gonzales’s mother arrived. His mother told him to tell the officers the truth. Gonzales finally told
them “I was at the apartment complex, the guy shoots me and I shot him back.” By all accounts,
at that point in the evening, the officers were investigating the incident as a case of self-defense.
Gonzales was originally handcuffed and taken to the juvenile facility. However, shortly
after arriving, the officers transported Gonzales to the Santa Rosa Children’s Hospital to be treated
for his injuries. While Gonzales was at the emergency room, San Antonio Police Detective
Raymond Roberts interviewed Estrada. Estrada told the officer that Whitley shot first; however,
when confronted by the officer, Estrada confessed their plan to rob Whitley and identified
Gonzales as possessing and firing the weapon. Detective Roberts requested Detective Kim Bower
proceed to Santa Rosa Children’s Hospital to check on Gonzales’s condition and to tell his mother
that Detective Roberts would like to speak to him. Detective Bowers testified she gave Gonzales’s
mother a card with her phone number and asked to her contact them when Gonzales was released.
Gonzales arrived at the police station between 2:30 a.m. and 3:00 a.m. Detective Roberts
told both Gonzales and his mother “If y’all don’t want to do it tonight, we don’t have to do it
tonight.” The record shows Detective Roberts insisted Gonzales was not under arrest, and that
Gonzales and his mother came in on their own, and they were both free to leave. In fact, Detective
Roberts told both Gonzales and his mother that Gonzales would be leaving at the end of the
interview. Detective Roberts did not Mirandize Gonzales and did not take him before a magistrate.
Detective Roberts asked Gonzales if he knew what was going on, if he was in pain, and
how he felt. Gonzales responded, “I feel fine.” Detective Roberts testified that Gonzales was able
to answer all of his questions and did not appear to be in any distress. Gonzales originally told
Detective Roberts that Whitley fired first and that he returned fire; Detective Roberts confronted
him with Estrada’s version of events and Gonzales ultimately told Detective Roberts their plan -3- 04-14-00352-CR
was to steal the marijuana from Whitley. Gonzales also told Roberts that he always takes a gun
with him whenever he goes to buy weed.
When asked to relay what transpired, Detective Roberts described Gonzales’s demeanor to
the court. He “kind of chuckled, smiled and he said, ‘That was my first mistake. My second was
letting him stand up.’” When Detective Roberts asked Gonzales to explain what he meant,
Gonzales explained that he should have pointed his weapon directly at Whitley instead of pointing
it down.
Before leaving the police station, Detective Roberts gave Gonzales an opportunity to tell
his mother the version of events he had relayed to the officer. Detective Roberts told Gonzales
and his mother that the information would be presented to a magistrate and, if the magistrate
determined the facts satisfied the elements set forth in the murder statute, then a warrant would
issue. He also explained that if Gonzales ran, it would make matters worse. Later that morning,
the magistrate issued an arrest warrant and Gonzales was arrested for the murder of James Whitley.
On September 26, 2012, the State filed its original petition for waiver of jurisdiction and
discretionary transfer to criminal court.
After a hearing, the juvenile trial court found probable cause to believe that Gonzales
committed the offense. The court concluded that due to the nature of the offense, Gonzales’s use
of a deadly weapon, the psychiatric evaluation, the probation officer’s certification and transfer
report, and the recommendations from the probation officers, the State’s petition should be
granted.
WAIVER OF JUVENILE JURISDICTION
Gonzales first argues the juvenile court erred in transferring jurisdiction to the criminal
-4- 04-14-00352-CR
A. Arguments of Parties
1. Gonzales
Gonzales contends the juvenile court erred when it found that the protection of the public
and rehabilitation of Gonzales could not be served with the juvenile probation’s resources and
programs. At the hearing, defense counsel maintained that a Texas Juvenile Justice Department
commitment would have adequately protected the public and rehabilitated Gonzales. Gonzales
argued he was not a violent person by nature and exhibited excellent behavior throughout both the
proceedings and all meetings with the probation officers. Defense counsel argued that Gonzales
was the picture of someone who could be rehabilitated. He acknowledged the wrongfulness of
Gonzales’s delinquent behaviors and expressed his beliefs that Gonzales had improved because
“he grew up.”
On appeal, Gonzales further argues the trial court erred by failing to focus on the individual
child. Instead, Gonzales contends the juvenile court focused solely on the severity of the
allegations. Gonzales was cooperative with law enforcement and there were no reports of behavior
issues during his incarceration. Gonzales suffers from cerebral palsy and epilepsy and requires
services available through the juvenile system. Finally, counsel argues that determinate sentencing
is a good option and would provide adequate protection to the community at large.
2. State
The State contends the factors weigh heavily in favor of transferring jurisdiction. Although
the individual factors are subject to review, the ultimate determination is based on a review of the
entire record. The State acknowledged Gonzales’s cerebral palsy and epilepsy; yet, the State
pointed out neither diagnosis prevented him from committing either this offense or previous
offenses which invoked the juvenile justice system. Moreover, this was not just a murder—but
felony murder. Gonzales went to the scene intending to steal drugs from a drug dealer. He took -5- 04-14-00352-CR
his own weapon to the drug deal and murdered the dealer. This was the third time in four years
that Gonzales was involved in the legal system and, although he was not classified as a gang
member, he did claim membership in YTC (Young Texas Click), a “tagging crew.”
B. Texas Family Code Section 54.02
Texas Family Code section 54.02(a)(3) provides that prior to transferring a juvenile to
criminal court for prosecution, the juvenile court must find (1) probable cause to believe the
juvenile committed the offense alleged in the petition; and (2) the seriousness of the offense
alleged, the background of the child, and the welfare of the community require criminal
prosecution. TEX. FAM. CODE ANN. § 54.02(a)(3) (West 2014); see also Faisst v. State, 105
S.W.3d 8, 11 (Tex. App.—Tyler 2003, no pet.). The Court of Criminal Appeals recently addressed
the juvenile court’s role in waiver of juvenile jurisdiction cases.
The transfer of a juvenile offender from juvenile court to criminal court for prosecution as an adult should be regarded as the exception, not the rule; the operative principle is that, whenever feasible, children and adolescents below a certain age should be “protected and rehabilitated rather than subjected to the harshness of the criminal system[.]”
Moon v. State, 451 S.W.3d 28, 36 (Tex. Crim. App. 2014) (alteration in original) (quoting Hidalgo
v. State, 983 S.W.2d 746, 754 (Tex. Crim. App. 1999)).
The State bears the burden to convince the juvenile court, by a preponderance of the
evidence, that “the welfare of the community requires transfer of jurisdiction for criminal
proceedings, either because of the seriousness of the offense or the background of the child (or
both).” Id. at 40–41 (citing Faisst, 105 S.W.3d at 11). The juvenile court’s order must provide
that the section 54.02(f) factors were taken into account in making the determination. Id. at 41–
42. An appellate court may only set aside the juvenile court’s determination upon a finding the
trial court abused its discretion. Id. at 42.
-6- 04-14-00352-CR
C. Standard of Review
Until recently, the appellate courts applied different guidelines for the abuse of discretion
standard. Compare In re M.D.B., 757 S.W.2d 415, 417 (Tex. App.—Houston [14th Dist.] 1988,
no writ) (“In reviewing the [juvenile] court’s action for an abuse of discretion, this court must
determine if the [juvenile] court acted without reference to any guiding rules and principles.”) with
Bleys v. State, 319 S.W.3d 857, 862–63 (Tex. App.—San Antonio 2010, no pet.), abrogated by
Moon, 451 S.W.3d at 47. (reviewing the factual sufficiency of the evidence to support the juvenile
court’s finding under Section 54.02(f)(4)). In Moon, 451 S.W.3d at 47, the Court of Criminal
Appeals explained that
in evaluating a juvenile court’s decision to waive its jurisdiction, an appellate court should first review the juvenile court’s specific findings of fact regarding the Section 54.02(f) factors under “traditional sufficiency of the evidence review.” But it should then review the juvenile court’s ultimate waiver decision under an abuse of discretion standard.
The court further explained, “In other words, was [the juvenile court’s] transfer decision essentially
arbitrary, given the evidence upon which it was based, or did it represent a reasonably principled
application of the legislative criteria?” Id. Our review begins with an analysis of the factors
outlined in Texas Family Code section 54.02(f).
D. Analysis under Texas Family Code section 54.02(f)
Gonzales’s case was called before the juvenile court on October 19, 2012.
1. Whether Alleged Offense Was Against a Person or Property
The first factor listed in section 54.02(f) is “whether the alleged offense was against person
or property.” TEX. FAM. CODE. ANN. § 54.02(f)(1). The alleged offense was the capital murder
of James Whitley. Detective Roberts testified as to his conversation with Gonzales and his
admitted involvement in the offense. Gonzales admitted that he and Estrada planned to rob
-7- 04-14-00352-CR
Whitley during a marijuana purchase. Gonzales brought his firearm to the planned robbery.
Gonzales planned the robbery and fired the shot that killed Whitley.
2. Sophistication and Maturity of the Child
The second factor is “the sophistication and maturity of the child.” Id. § 54.02(f)(2);
Faisst, 105 S.W.3d at 11. Bexar County Juvenile Probation Officer Traci Geppert testified that
she met with Gonzales and his family on multiple occasions and she considered him to be
sophisticated and mature. She further relayed that he understood both the proceedings and the
charges against him.
Also available to the trial court was the psychiatric evaluation requested by the juvenile
probation office. Dr. Heather Holder’s report provided that “[Gonzales] knows right from wrong
in a general sense, and he is specifically aware of the wrongfulness of the charge of which he is
currently accused.” Additionally, she concluded “it is believed that [Gonzales] is mature and
sophisticated in that he is responsible for his conduct and able to assist his attorney in his defense.”
See TEX. FAM. CODE ANN. § 54.02(f)(2).
Gonzales’s mother also testified before the juvenile court. She described her son as very
much in control during the incident. When he originally lied to the officer, she directed him to tell
the officers the truth and he did so.
3. Record and Previous History of the Child
The third factor to consider is “the record and previous history of the child.” Id.
§ 54.02(f)(3); Faisst, 105 S.W.3d at 11. Gonzales had two prior juvenile probations. In 2008, he
was placed on deferred probation for possession of a controlled substance, Xanax. In 2009,
Gonzales was placed on formal probation for the charge of terroristic threats stemming from
Gonzales threatening another student with a pair of scissors. See TEX. FAM. CODE ANN.
-8- 04-14-00352-CR
§ 54.02(f)(3); Faisst, 105 S.W.3d at 11. He completed his probation in April of 2010. Both
charges resulted in Gonzales being expelled from the school he was attending.
At the time of his arrest, Gonzales was a student at Robert E. Lee High School and several
letters were presented to the trial court describing Gonzales as a nice student without any outward
displays of violent behavior.
4. Adequate Protection of the Public and Likelihood of Rehabilitation
The fourth factor to consider is “the prospect 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.” TEX. FAM. CODE ANN. § 54.02(f)(4); Faisst, 105 S.W.3d at 11.
At the time of the offense, Gonzales was living with his mother and two sisters. When his mother
was notified of the shooting, her initial reaction was that it could not be Gonzales because he was
at home. She was unaware that he had left the residence and did not know that he owned a firearm.
Geppert further addressed Gonzales’s cerebral palsy and epilepsy diagnoses. He had a special
education distinction based on his orthopedic impairment and a reading disorder. He was
mainstreamed at the high school and had not exhibited behavioral issues while in detention.
During cross-examination, Gonzales’s mother conceded that Gonzales had recently run away from
home because he did not like “living by the rules.” However, after living on the streets for a period
of time, he had returned to their home.
Geppert testified the juvenile court system’s probation jurisdiction would end when
Gonzales turned eighteen and the jurisdiction for Texas Youth Commission would end when
Gonzales turned nineteen. Geppert explained the only other option, besides adult sentencing, was
determinate sentencing. She did not believe determinate sentencing was proper because of the
allegations: the charge was murder, Gonzales was carrying his weapon, and Gonzales was
purchasing marijuana. Additionally, Geppert testified that she did not believe the juvenile -9- 04-14-00352-CR
probation system had sufficient time to work with Gonzales given the severity of the allegations.
See TEX. FAM. CODE ANN. § 54.02(f)(3); Faisst, 105 S.W.3d at 11. Her supervisor agreed, and so
did a staffing committee, consisting of two supervisors and a Child Protective Services
representative.
5. Specific Factual Findings
Not only must the record substantiate the court’s findings, but the juvenile court must make
“case-specific findings of fact” with respect to the 54.02(f) factors. See Moon, 451 S.W.3d at 51.
Here, the juvenile court judge made the following findings:
1) Gonzales was alleged to have committed murder under Texas Penal Code section 19.02;
2) Gonzales was sixteen at the time of the hearing;
3) Gonzales was fifteen at the time of the offense;
4) Gonzales’s mother resides in Bexar County;
5) no adjudication hearing had yet been conducted;
6) the parties were properly notified of the hearing;
7) prior to the hearing, the trial court obtained a psychological assessment including a psychological examination, a complete diagnostic study, a social evaluation, full investigation of Gonzales, Gonzales’s circumstances, and the circumstances of the alleged offense;
8) the offense was against a person;
9) Gonzales is sophisticated and mature enough to be transferred into the criminal justice system and he understands the allegations, the court proceedings, and their possible consequences;
10) the procedures, services, and facilities available to the Juvenile Court are inadequate for rehabilitation of Gonzales while also protecting the public; and
11) after a full investigation and hearing, Gonzales’s circumstances, and the circumstances of the offense, there is probable cause to believe that Gonzales committed the offense and, because of the seriousness of the offense and the background of Gonzales, the welfare of the community required that criminal proceedings proceed in Criminal District Court.
- 10 - 04-14-00352-CR
6. Analysis
Here, the juvenile court’s findings are substantially more case-specific than the findings
analyzed in Moon. See Moon, 451 S.W.3d at 51 (concluding the trial court’s findings were
superfluous because it only considered fact that offense was against another person). The juvenile
court made specific findings as to Gonzales. Cf. id. Based on a review of the record, including
the trial court’s findings of fact, we conclude the trial court provided “a sure-footed and definite
basis from which an appellate court can determine that its decision was in fact appropriately guided
by the statutory criteria, principled, and reasonable.” Id. at 49; cf. Guerrero v. State, No. 14-13-
00101-CR, 2014 WL 7345987, at *3 (Tex. App.—Houston [14th Dist.] Dec. 23, 2014, no pet.)
(mem. op., not designated for publication) (concluding the trial court’s order was deficient under
Moon). Accordingly, we overrule Gonzales’s first issue.
MOTION TO SUPPRESS
Gonzales next contends the trial court erred in failing to suppress his statement given to
Detective Roberts.
A. Arguments of the Parties
At trial and on appeal, defense counsel argued Gonzales was a scared fifteen-year old and
that any reasonable individual in his position would have believed that he was not free to leave.
The interrogation was, therefore, custodial and the officer was required to take Gonzales before a
magistrate prior to obtaining a statement.
The State was adamant that Gonzales was not in custody when he gave his statement to
Detective Roberts. Both he and his mother were told they could leave and did not have to talk to
the officers. They were both told that no matter what Gonzales relayed to the officer, his mother
would be taking him home that night. And, in fact, as the officer promised, Gonzales left with his
mother and the case was presented to a magistrate. - 11 - 04-14-00352-CR
B. Standard of Review
When an appellate court reviews a trial court’s ruling on a motion to suppress, we apply a
bifurcated standard. State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006); Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When a question turns on credibility and
demeanor, an appellate court views the evidence in the light most favorable to the trial court’s
ruling and gives “almost total deference to a trial court’s determination of the historical facts that
the record supports.” Guzman, 955 S.W.2d at 89; accord Montanez v. State, 195 S.W.3d 101, 106
(Tex. Crim. App. 2006) (quoting Guzman). We give the same deference to the trial court’s rulings
on mixed questions of law and fact “if the resolution of those ultimate questions turns on an
evaluation of credibility and demeanor.” Guzman, 955 S.W.2d at 89; accord Montanez, 195
S.W.3d at 106.
We review other mixed questions of law and fact and questions of law de novo. Guzman,
955 S.W.2d at 89; accord Montanez, 195 S.W.3d at 106. When custody attaches is a mixed
question of law and fact. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007); Garza
v. State, 34 S.W.3d 591, 593 (Tex. App.—San Antonio 2000, pet. ref’d).
B. Texas Family Code section 51.09
When a defendant is a juvenile at the time of his arrest, the provisions of the Texas Family
Code control issues involving his substantive rights. Roquemore v. State, 60 S.W.3d 862, 866
(Tex. Crim. App. 2001). Gonzales contends his interrogation by Detective Roberts constituted a
custodial interrogation and that his confession should have been suppressed under Texas Family
Code section 51.095 because he was not brought before a magistrate. See TEX. FAM. CODE ANN.
§ 51.095 (West 2014); Meadoux v. State, 307 S.W.3d 401, 408 (Tex. App.—San Antonio 2009),
aff’d, 325 S.W.3d 189 (Tex. Crim. App. 2010).
- 12 - 04-14-00352-CR
C. Gonzales’s Interrogation
In determining whether an individual is in custody, an appellate court examines all of the
circumstances surrounding the interrogation to determine if there was a formal arrest or “restraint
on freedom of movement to the degree associated with a formal arrest.” Stansbury v. California,
511 U.S. 318, 322 (1994) (internal quotation marks omitted); In re D.J.C., 312 S.W.3d 704, 712
(Tex. App.—Houston [1st Dist.] 2009, no pet.). This determination focuses on the objective
circumstances of the interrogation and not on the subjective views of either the interrogating
officers or the person being questioned. See Stansbury, 511 U.S. at 323; In re D.J.C., 312 S.W.3d
at 712. Our review focuses on whether, in light of the particular circumstances, a reasonable
person would have felt that he was at liberty to terminate the interrogation and leave. Thompson
v. Keohane, 516 U.S. 99, 112 (1995); In re D.J.C., 312 S.W.3d at 712.
In Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996), the Court of Criminal
Appeals set forth four factors relevant to the determination of whether an individual is in custody:
(1) Was the suspect “physically deprived of his freedom of action in any significant way”?; (2)
Did “a law enforcement officer tell the suspect that he cannot leave”?; (3) Did the “law
enforcement officers create a situation that would lead a reasonable person to believe that his
freedom of movement has been significantly restricted”?; or (4) Was there “probable cause to
arrest and law enforcement officers [did] not tell the suspect that he [was] free to leave”? Id.; see
also In re D.J.C., 312 S.W.3d at 713. We remain mindful that because the custody determination
is based entirely on objective circumstances, whether the law enforcement official had the
subjective intent to arrest is irrelevant unless that intent is somehow communicated to the suspect.
Stansbury, 511 U.S. at 323–24; Dowthitt, 931 S.W.2d at 254; In re D.J.C., 312 S.W.3d at 713.
We, therefore, turn to an analysis of each of the Dowthitt factors.
- 13 - 04-14-00352-CR
1. Was Gonzales Physically Deprived of His Freedom of Action?
“[O]rdinarily, when a person voluntarily accompanies a law enforcement officer to a
certain location, even though the person knows or should know that the officer suspects that he or
she may have committed or may be implicated in the commission of a crime, the person is not
restrained or ‘in custody.’” Garcia v. State, 237 S.W.3d 833, 836 (Tex. App.—Amarillo 2007, no
pet.) (citing Miller v. State, 196 S.W.3d 256, 264 (Tex. App.—Fort Worth 2006, pet. ref’d)).
“When the circumstances show that the individual acts upon the invitation or request of the police
and there are no threats, express or implied, that he will be forcibly taken, then that person is not
in custody at that time.” In re D.J.C., 312 S.W.3d at 713; Garcia, 237 S.W.3d at 836 (citing Shiflet
v. State, 732 S.W.2d 622, 628 (Tex. Crim. App. 1985)).
Here, the only testimony before the juvenile court was that Gonzales and his mother were
told they did not have to speak to the officers and that they could leave at any time. Gonzales’s
mother did testify that Detective Bowers told her that the officers “thought it was self-defense and
that if I would take him back that they could clear it all up.” However, that does not rebut the
officer’s testimony that Gonzales and his mother knew they could leave the interrogation if they
chose to do so.
2. Did Detective Roberts Communicate that Gonzales Was Not Free to Leave?
There is no indication, and Gonzales does not allege, that at any point during his
conversation with Detective Roberts that Detective Roberts, or any other individual, told Gonzales
that he was not free to leave. All evidence contained within the record supports the contrary
proposition.
3. Would a Reasonable Person Believe His Freedom of Movement Was Restricted?
At several points prior to the interview, and at several points during the interview,
Detective Roberts told Gonzales that he would be leaving the police station after giving his - 14 - 04-14-00352-CR
statement. Detective Roberts testified he did not consider Gonzales in custody and did not plan to
arrest Gonzales prior to seeking an arrest warrant from a magistrate. Detective Roberts clearly
articulated his subjective intent to Gonzales and his mother. See Stansbury, 511 U.S. at 323
(communicating subjective intent affects objective circumstances); Dowthitt, 931 S.W.2d at 254
(same); In re D.J.C., 312 S.W.3d at 713 (same).
Although Gonzales contends that his age and the events earlier that evening would lead a
reasonable person to believe he was in custody, the record simply does not support such an
allegation. At no time following the doctor’s examination at the hospital was Gonzales in
handcuffs. Gonzales left the hospital with his mother and his mother took him to the police station.
Nothing compelled either Gonzales or his mother to be at the police station. When they arrived,
Gonzales and his mother were informed they were free to leave at any time and did not have to
talk to the officers. After Gonzales finished speaking to Detective Roberts, he and his mother
voluntarily left the police station.
4. Was There Probable Cause to Arrest and Detective Roberts Failed to Tell Gonzales He Was Free to Leave?
By the time Detective Roberts interviewed Gonzales, he had already interviewed Estrada
and knew Gonzales was involved in Whitley’s death. However, Detective Roberts testified that
although Estrada claimed the firearm belonged to Gonzales and that Gonzales was the individual
who shot Whitley, he anticipated Gonzales could reasonably point the finger at Estrada as the
shooter. It was not until Gonzales told the officer that the gun used during the robbery was his
firearm, that he brought the weapon to the apartment complex, and that he fired at Whitley that
Detective Roberts was able to confirm Estrada’s statement.
Although Detective Roberts may well have possessed probable cause to arrest Gonzales at
some point during the interview, there is no controverting evidence that Detective Roberts
- 15 - 04-14-00352-CR
instructed Gonzales that he was free to leave and Gonzales left. Detective Roberts also clearly
articulated his intent to present the evidence to the magistrate and that he anticipated a warrant
would issue for Gonzales’s arrest. The concern that an officer has established probable cause to
arrest and does not tell the defendant that he is free to leave, as outlined in Dowthitt and its progeny,
is not present in this case. See Dowthitt, 931 S.W.2d at 255; Aguilera v. State, 425 S.W.3d 448,
456 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
D. Application
Because this case turns on the trial court’s determination of credibility and demeanor, we
give almost total deference to the trial court’s factual findings. Montanez, 195 S.W.3d at 106;
Guzman, 955 S.W.2d at 89. Although the evidence supports Gonzales was originally handcuffed
at the gas station, and when he was transported to the juvenile facility and Santa Rosa Children’s
Hospital, he was never in handcuffs or restrained in any manner when he spoke to Detective
Roberts. Detective Roberts’s testimony that he specifically told both Gonzales and his mother that
she would be taking Gonzales home that evening was supported by Detective Bowers’s testimony
as well as the video recording of Gonzales’s statement. Merely being questioned by an officer,
even when the officer has reason to believe the juvenile is involved in a criminal activity, does not
constitute custody. Dowthitt, 931 S.W.2d at 255; In re D.J.C., 312 S.W.3d at 713. Gonzales was
present with his mother, both Gonzales and his mother agreed for Gonzales to speak to Detective
Roberts, Gonzales was told that he was not under arrest, and he left the police station after his
statement.
Because the evidence supports that Gonzales was free to leave at any time and that he
elected to speak to Detective Roberts, we conclude that a reasonable person would have believed
he was at liberty to terminate the interrogation and leave. See Thompson, 516 U.S. at 112;
Stansbury, 511 U.S. at 323; Dowthitt, 931 S.W.2d at 254–55. Accordingly, the trial court did not - 16 - 04-14-00352-CR
abuse its discretion in allowing Detective Roberts to testify regarding Gonzales’s statement and to
admit a video-recording of the same statement into testimony. We, therefore, overrule Gonzales’s
second issue.
CONCLUSION
Having overruled both of Gonzales’s issues on appeal, we affirm the trial court’s judgment.
Patricia O. Alvarez, Justice
PUBLISH
- 17 - Fourth Court of Appeals San Antonio, Texas
JUDGMENT No. 04-14-00352-CR
From the 386th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR7917 Honorable Laura Parker, Judge Presiding
BEFORE JUSTICE ALVAREZ, JUSTICE CHAPA, AND JUSTICE PULLIAM
In accordance with this court’s opinion of this date, the trial court’s judgment is AFFIRMED.
SIGNED May 6, 2015.
_____________________________ Patricia O. Alvarez, Justice