in the Matter of A. M.
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Opinion
Opinion issued May 21, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00017-CV ——————————— IN THE MATTER OF A.M.
On Appeal from the County Court at Law No. 1 Fort Bend County, Texas Trial Court Case No. 12-CJV-017003
DISSENTING OPINION ON REHEARING
I respectfully dissent. The majority opinion is deeply contrary to established
law. It creates a wholly new, unprecedented, and unworkable standard of review
of a juvenile court’s findings with respect to a transfer from juvenile court to criminal district court of proceedings filed against a juvenile before his eighteenth
birthday but decided after his eighteenth birthday, and it erroneously dismisses the
case for lack of jurisdiction.
Background
This case is before this Court following remand from the Fourteenth Court
of Appeals to the juvenile court in which murder proceedings were initiated against
A.M. before his eighteenth birthday. The case was initially transferred by the
juvenile court to criminal district court after A.M.’s eighteenth birthday. A.M. was
tried for murder, convicted, and sentenced to forty-five years in prison. Morrison
v. State, 503 S.W.3d 724, 725 (Tex. App.—Houston [14th Dist.] 2016, pet ref’d).
Following the trial, he filed his first appeal of his conviction, which was assigned
to the Fourteenth Court of Appeals.
Applying a then-recently decided case from the Texas Court of Criminal
Appeals, Moore v. State, the Fourteenth Court of Appeals held that when, as here,
a juvenile is arrested before he turns eighteen for a crime committed before he was
seventeen, but the juvenile proceedings against him are concluded and an order of
transfer issued after the person turns eighteen, not only must the State satisfy the
factors under Texas Family Code section 54.02(a), on which the prosecutor in this
case had relied, it must also prove that transfer is appropriate under section
54.02(j), which the State had not done because it mistakenly thought that section
2 54.02(j) did not apply. Id. at 727–28 (citing Moore1 and explaining that section
54.02(j) applies when transfer occurs after person turns eighteen even if petition to
transfer is filed before birthday). Accordingly, the Fourteenth Court ordered the
juvenile court to hold a new transfer hearing to allow the State the opportunity to
put on evidence in support of the transfer from which the juvenile court could
reasonably conclude by a preponderance of the evidence that “for a reason beyond
the control of the state it was not practicable to proceed in juvenile court before the
18th birthday of the person.”2 Morrison, 503 S.W.3d at 727–28; see TEX. FAM.
CODE § 54.02(j)(4)(A); Moore v. State, 532 S.W.3d 400, 404–05 (Tex. Crim. App.
2017) (per curiam) (subsection 52.04(j)(4)(A) “is meant to limit the prosecution of
an adult for an act he committed as a juvenile if his case could reasonably have
been dealt with when he was still a juvenile”).
This appeal is from the juvenile court’s order on remand finding that it was
not practicable to conclude the proceedings in juvenile court regarding the murder
charge against A.M. before his eighteenth birthday. We review the transfer order
1 The Fourteenth Court cited Moore v. State, No. PD-1634-14, 2016 WL 6091386 (Tex. Crim. App. Oct. 19, 2016), which the Court of Criminal Appeals subsequently withdrew and replaced with a new opinion, Moore v. State, 532 S.W.3d 400 (Tex. Crim. App. 2017) (per curiam). The new opinion, however, did not change the rule on which our sister court relied. Id. at 405. 2 Subsection 52.04(j)(4) contains alternative grounds for waiver of jurisdiction by the juvenile court and transfer that all parties agree are not relevant to this appeal. See TEX. FAM. CODE § 54.02(j)(4)(B). 3 on remand to determine whether the juvenile court abused its discretion in making
the practicability finding, waiving its jurisdiction, and transferring the case to
criminal district court.
Discussion
As the majority acknowledges, this appeal presents one issue: whether the
juvenile court abused its discretion by finding that it was not “practicable” for
reasons beyond the State’s control for that court to have concluded proceedings
commenced against A.M. before A.M.’s eighteenth birthday
I strongly disagree with the majority’s handling and disposition of this case.
The majority does not recite the detailed statutory requirements for reviewing
transfer orders set out by the Court of Criminal Appeals in Moon v. State, 451
S.W.2d 28 (Tex. Crim. App. 2014), and by this Court in a number of recent cases,
which are addressed below. The majority does not construe the term “practicable”
in its opinion, although the case was remanded solely for a practicability finding;
and it does not apply the Court of Criminal Appeals’ construction of that term as
used in Family Code section 54.02(j), which states that the conclusion of
proceedings against a juvenile in juvenile court before his eighteenth birthday is
“practicable” “if his case could reasonably have been dealt with when he was still
a juvenile.” See Moore, 532 S.W.3d at 405 (emphasis added).
4 Nor does it apply this standard as it was applied in Moore. Notably, the facts
in Moore, which established the criteria for determining the practicability of
completing proceedings against a juvenile before his eighteenth birthday are
materially different in every respect from those in this case. Specifically,
(1) although the defendant in Moore was sixteen years old at the time of his sexual
assault of his twelve-year-old cousin, “[t]he police investigation began soon
thereafter with the investigating detective requesting reports from Child Protective
Services and the hospital where the victim was examined”; (2) because the
investigating detective had a heavy caseload and gave priority to other cases, she
did not forward the case to the district attorney’s office for almost two years;
(3) the investigating detective believed that the defendant was seventeen years old,
when he was actually eighteen, because of an error in one of the reports; and
(4) the State took another year to file a petition for discretionary transfer of the
case from juvenile court to criminal district court. 532 S.W.3d at 402. The only
reasonable inference from these facts in Moore, in the absence of evidence to the
contrary, is that the State did nothing to prosecute the case for three years.
The majority applies its own standard of practicability that is contrary to law
in multiple respects and in direct contravention of its own admonition that “the
question [before this Court] is not whether we might have decided the issue
differently.” Slip Op. at 8 (“As with any decision that lies within the trial court’s
5 discretion, the question is not whether we might have decided the issue
differently”) (citing Moon, 451 S.W.3d at 49). And, rather than following the
established standard of review of a juvenile court’s findings in a transfer order or
applying the construction of the term “practicable” as in Moore, as soon as it states
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Opinion issued May 21, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00017-CV ——————————— IN THE MATTER OF A.M.
On Appeal from the County Court at Law No. 1 Fort Bend County, Texas Trial Court Case No. 12-CJV-017003
DISSENTING OPINION ON REHEARING
I respectfully dissent. The majority opinion is deeply contrary to established
law. It creates a wholly new, unprecedented, and unworkable standard of review
of a juvenile court’s findings with respect to a transfer from juvenile court to criminal district court of proceedings filed against a juvenile before his eighteenth
birthday but decided after his eighteenth birthday, and it erroneously dismisses the
case for lack of jurisdiction.
Background
This case is before this Court following remand from the Fourteenth Court
of Appeals to the juvenile court in which murder proceedings were initiated against
A.M. before his eighteenth birthday. The case was initially transferred by the
juvenile court to criminal district court after A.M.’s eighteenth birthday. A.M. was
tried for murder, convicted, and sentenced to forty-five years in prison. Morrison
v. State, 503 S.W.3d 724, 725 (Tex. App.—Houston [14th Dist.] 2016, pet ref’d).
Following the trial, he filed his first appeal of his conviction, which was assigned
to the Fourteenth Court of Appeals.
Applying a then-recently decided case from the Texas Court of Criminal
Appeals, Moore v. State, the Fourteenth Court of Appeals held that when, as here,
a juvenile is arrested before he turns eighteen for a crime committed before he was
seventeen, but the juvenile proceedings against him are concluded and an order of
transfer issued after the person turns eighteen, not only must the State satisfy the
factors under Texas Family Code section 54.02(a), on which the prosecutor in this
case had relied, it must also prove that transfer is appropriate under section
54.02(j), which the State had not done because it mistakenly thought that section
2 54.02(j) did not apply. Id. at 727–28 (citing Moore1 and explaining that section
54.02(j) applies when transfer occurs after person turns eighteen even if petition to
transfer is filed before birthday). Accordingly, the Fourteenth Court ordered the
juvenile court to hold a new transfer hearing to allow the State the opportunity to
put on evidence in support of the transfer from which the juvenile court could
reasonably conclude by a preponderance of the evidence that “for a reason beyond
the control of the state it was not practicable to proceed in juvenile court before the
18th birthday of the person.”2 Morrison, 503 S.W.3d at 727–28; see TEX. FAM.
CODE § 54.02(j)(4)(A); Moore v. State, 532 S.W.3d 400, 404–05 (Tex. Crim. App.
2017) (per curiam) (subsection 52.04(j)(4)(A) “is meant to limit the prosecution of
an adult for an act he committed as a juvenile if his case could reasonably have
been dealt with when he was still a juvenile”).
This appeal is from the juvenile court’s order on remand finding that it was
not practicable to conclude the proceedings in juvenile court regarding the murder
charge against A.M. before his eighteenth birthday. We review the transfer order
1 The Fourteenth Court cited Moore v. State, No. PD-1634-14, 2016 WL 6091386 (Tex. Crim. App. Oct. 19, 2016), which the Court of Criminal Appeals subsequently withdrew and replaced with a new opinion, Moore v. State, 532 S.W.3d 400 (Tex. Crim. App. 2017) (per curiam). The new opinion, however, did not change the rule on which our sister court relied. Id. at 405. 2 Subsection 52.04(j)(4) contains alternative grounds for waiver of jurisdiction by the juvenile court and transfer that all parties agree are not relevant to this appeal. See TEX. FAM. CODE § 54.02(j)(4)(B). 3 on remand to determine whether the juvenile court abused its discretion in making
the practicability finding, waiving its jurisdiction, and transferring the case to
criminal district court.
Discussion
As the majority acknowledges, this appeal presents one issue: whether the
juvenile court abused its discretion by finding that it was not “practicable” for
reasons beyond the State’s control for that court to have concluded proceedings
commenced against A.M. before A.M.’s eighteenth birthday
I strongly disagree with the majority’s handling and disposition of this case.
The majority does not recite the detailed statutory requirements for reviewing
transfer orders set out by the Court of Criminal Appeals in Moon v. State, 451
S.W.2d 28 (Tex. Crim. App. 2014), and by this Court in a number of recent cases,
which are addressed below. The majority does not construe the term “practicable”
in its opinion, although the case was remanded solely for a practicability finding;
and it does not apply the Court of Criminal Appeals’ construction of that term as
used in Family Code section 54.02(j), which states that the conclusion of
proceedings against a juvenile in juvenile court before his eighteenth birthday is
“practicable” “if his case could reasonably have been dealt with when he was still
a juvenile.” See Moore, 532 S.W.3d at 405 (emphasis added).
4 Nor does it apply this standard as it was applied in Moore. Notably, the facts
in Moore, which established the criteria for determining the practicability of
completing proceedings against a juvenile before his eighteenth birthday are
materially different in every respect from those in this case. Specifically,
(1) although the defendant in Moore was sixteen years old at the time of his sexual
assault of his twelve-year-old cousin, “[t]he police investigation began soon
thereafter with the investigating detective requesting reports from Child Protective
Services and the hospital where the victim was examined”; (2) because the
investigating detective had a heavy caseload and gave priority to other cases, she
did not forward the case to the district attorney’s office for almost two years;
(3) the investigating detective believed that the defendant was seventeen years old,
when he was actually eighteen, because of an error in one of the reports; and
(4) the State took another year to file a petition for discretionary transfer of the
case from juvenile court to criminal district court. 532 S.W.3d at 402. The only
reasonable inference from these facts in Moore, in the absence of evidence to the
contrary, is that the State did nothing to prosecute the case for three years.
The majority applies its own standard of practicability that is contrary to law
in multiple respects and in direct contravention of its own admonition that “the
question [before this Court] is not whether we might have decided the issue
differently.” Slip Op. at 8 (“As with any decision that lies within the trial court’s
5 discretion, the question is not whether we might have decided the issue
differently”) (citing Moon, 451 S.W.3d at 49). And, rather than following the
established standard of review of a juvenile court’s findings in a transfer order or
applying the construction of the term “practicable” as in Moore, as soon as it states
the standard of review, the majority rejects the juvenile court’s findings in favor of
conducting its own independent evaluation of the facts and prosecutorial decisions
made by law enforcement it finds relevant under its own unstated standard of
review.
On this basis, the majority implicitly finds a legal duty of law enforcement
officials and prosecutors to bring any charges they can against a juvenile as fast as
they can without waiting for physical evidence, without going through regular
police procedures for analyzing evidence, and without taking the ordinary
professional course in completing the statutory pre-requisites to a transfer order
once charges are filed. It requires express findings on witness credibility and on
what the witness should have known and done. And it bases its decision that the
district court abused its discretion in transferring the case on this substituted
standard of review.
And to what end does the majority deem this heroic effort to be mandated in
this case? So that the juvenile court would not lose the option of sending A.M.—at
least a three-time offender—to rehabilitation instead of transferring him to criminal
6 district court for trial for murder, which is all that is lost by holding a transfer
hearing after a juvenile’s eighteenth birthday. See TEX. FAM. CODE § 54.02(j);
Moore, 532 S.W.3d at 404–05 (acknowledging that when juvenile turns eighteen,
juvenile court does not lose jurisdiction, but its jurisdiction becomes limited, and it
may then only either transfer case to appropriate court or dismiss it); In re H.Y.,
512 S.W.3d 467, 476 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (stating that
material difference between proceeding under subsection 54.02(a) and proceeding
under 54.02(j) “is that the juvenile court must consider the person’s likelihood of
rehabilitation if he is under 18, but is not required to consider it if the person is 18
or older”).
In short, the majority sets a standard of review of a juvenile court’s findings
in support of a transfer order that contravenes established law and that violates
every reasonable construction of the term “practicable” in order to assure that
A.M.—and by extension all future juveniles—does not lose the benefit of having
the juvenile court consider whether he should be sent to rehabilitation before his
eighteenth birthday rather than being tried for murder as an adult—no matter how
illusory the benefit in the actual case and no matter the efforts required to attain it.
And it turns a blind eye to whether “the seriousness of the offense alleged or the
background of [A.M.] warrant[ed] transfer for the welfare of the community,”
7 despite Moon’s mandate that the juvenile court’s findings in a transfer order speak
precisely to this ultimate issue, as well as to the best interests of the juvenile. See
451 S.W.3d at 50.
I would conclude, under the correct standard of review to the juvenile
court’s practicability finding, that the State met its burden on remand of showing
that the conclusion of proceedings against A.M. in the juvenile court before his
eighteenth birthday was not practicable. Accordingly, I would hold that the
juvenile court did not abuse its discretion in so finding and in waiving its
jurisdiction and transferring the case to criminal district court, and therefore it did
not err. I would affirm the juvenile court’s transfer of the murder case against
A.M. to criminal district court for retrial.
A. The Law Governing a Juvenile Court’s Waiver of Jurisdiction and Transfer to District Court
A juvenile court has exclusive original jurisdiction over all proceedings
involving a person who has engaged in delinquent conduct as a result of acts
committed between the ages of ten and seventeen. See TEX. FAM. CODE
§§ 51.02(2), 51.04(a).
Family Code section 54.02 governs the waiver of a juvenile court’s
exclusive original jurisdiction and transfer of the case to the appropriate criminal
district court. TEX. FAM. CODE § 54.02. Section 54.02 provides in relevant part:
8 (j) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if [among other requirements]:
....
(4) the juvenile court finds from a preponderance of the evidence that:
(A) for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person; or
(B) after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person because:
(ii) the person could not be found. . . .
TEX. FAM. CODE § 54.02.3
Section 54.02 and related sections of the Family Code place numerous
statutory protections for juveniles on the power of a juvenile court to waive
jurisdiction and transfer proceedings to district court when, as here, a juvenile was
fourteen years of age or older at the time he was alleged to have committed a
felony of the first degree (here, murder under Penal Code Chapter 19) but had not
turned eighteen when the proceedings in juvenile court were commenced. TEX.
FAM. CODE § 54.02(j)(2)(A).
3 It is undisputed by the parties that subsection (j)(4)(B) is inapplicable. 9 Statutory prerequisites to transfer include the preliminary investigation and
determinations and notice to parents required by Family Code section 53.01, which
can only commence once there is probable cause to believe the juvenile engaged in
delinquent conduct—a determination made here on January 27, 2012, and
confirmed by the juvenile court’s probable cause finding on January 31, 2012. Id.
§ 53.01(a). If, as here, the case is a felony, it must promptly be forwarded to the
office of the prosecuting attorney along with all documents that accompanied the
current referral and a summary of all prior referrals of the child for consideration
by the juvenile board. Id. § 53.01(d)–(f).
The referral is then reviewed by the prosecutor, who must terminate all
proceedings if there is no probable cause or return the referral to the juvenile
probation department for further proceedings. Id. § 53.012. If the preliminary
investigation reveals that further proceedings are authorized and warranted, rather
than dismissal for lack of probable cause, the prosecuting attorney may file a court
petition for an adjudication or transfer hearing with the juvenile court “as promptly
as practicable,” and may, prior to that, refer the offense to a grand jury to further
investigate the facts and circumstances concerning the offense and approving
prosecution. Id. §§ 53.04, 53.035.
The petition and notice requirements of sections 53.04, 53.05, 53.06, and
53.07 must also be satisfied. Id. § 54.02(b).
10 The juvenile court must then conduct a hearing without a jury to consider
transfer of the child for criminal proceedings. Id. § 54.02(c). But, prior to the
hearing, the juvenile court “shall order and obtain a complete diagnostic study,
social evaluation, and full investigation of the child, his circumstances, and the
circumstances of the alleged offense.” Id. § 54.02(d); see In re D.L.N., 930 S.W.2d
253, 255 (Tex. App.—Houston [14th Dist.] 1996, no pet.). At the transfer hearing,
the court may consider written reports from probation officers, court employees,
professional consultants, and witnesses; and, at least five days before the hearing,
“the court shall provide the attorney for the child and the prosecuting attorney with
access to all written matter to be considered by the court in making the transfer
decision.” TEX. FAM. CODE § 54.02(e).
The hearing’s purpose is not to determine guilt or innocence but to establish
whether the best interests of the minor and society are furthered by maintaining
jurisdiction in the juvenile court or by transferring the minor to district court for
adult proceedings. In re D.L.N., 930 S.W.2d at 255. Accordingly, the juvenile
court determines whether there is probable cause to believe that the minor
committed the offense alleged and whether, because of the seriousness of the
offense or the minor’s background, the welfare of the community requires criminal
proceedings. Id.
11 In making the transfer determination, the court must consider “(1) whether
the alleged offense was against 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 the
rehabilitation of the child by use of procedures, services, and facilities currently
available to the juvenile court.” TEX. FAM. CODE § 54.02(f).
If the court waives jurisdiction, it must “state specifically in the order its
reasons for waiver and certify its action, including the written order and findings of
the court, and shall transfer the person to the appropriate court for criminal
proceedings,” and cause the psychological study to be transferred to the
appropriate criminal prosecutor. Id. § 54.02(h). “A transfer of custody made
under this subsection is an arrest.” Id.
When a juvenile is arrested before he turns eighteen for a crime committed
before he turned seventeen, but the transfer hearing is held after the juvenile’s
eighteenth birthday, the juvenile court must make the findings required by
subsection 54.02(j) in addition to the findings required by subsection 54.02(a).
Morrison, 503 S.W.3d at 272–28. Section 54.02(j) provides that, if the
prerequisites to completion of the proceedings in juvenile court cannot reasonably
be dealt with before the person’s eighteenth birthday, the juvenile court may hold
12 the transfer hearing after the person’s birthday, waive its exclusive original
jurisdiction, and transfer the person to criminal district court if (1) the person is
eighteen years of age or older; (2) the person was between ten and seventeen years
of age at the time he is alleged to have committed an offense such as one under
Penal Code section 19.02 (Murder); (3) no adjudication concerning the alleged
offense has been made or adjudication hearing concerning the offense conducted;
(4) the court finds from a preponderance of the evidence that it was not practicable
to proceed in juvenile court before the child’s eighteenth birthday; and (5) the
juvenile court determines there is probable cause to believe the child committed
the offense alleged. Id. § 54.02(j).
That was the case here. Specifically, the juvenile court was required to find
facts (1) from which it could reasonably be inferred that the State conducted a
diligent investigation to discover and bring to justice the killer of the complainant,
Kristian Sullivan or “K-Su,” between the time K-Su was murdered and the time
A.M. was identified as a participant in the murder, physical evidence linking him
to the crime was found and processed, and probable cause was developed to arrest
him and (2) from which it could reasonably be inferred that the statutorily-
mandated prerequisites to transfer could not reasonably have been dealt with in the
eight weeks between the time probable cause to arrest A.M. was obtained and his
eighteenth birthday.
13 Only, here, the juvenile court did not make its finding that it was not
practicable to proceed in juvenile court before A.M.’s eighteenth birthday on the
record at the original hearing in 2012, as required by section 54.02(j)(4). The
Fourteenth Court of Appeals’ remand of the case to the juvenile court in 2016 was
specifically to allow the juvenile court the opportunity to hold another transfer
hearing and to make the omitted findings on the basis of the preponderance of the
evidence standard.
B. Standard of Review of Order Transferring Proceedings from Juvenile Court to Criminal District Court
Appellate courts review a juvenile court’s order waiving its jurisdiction and
transferring proceedings to criminal district court under an abuse of discretion
standard. See Moon, 451 S.W.3d at 40 (holding that State has burden “to produce
evidence to inform the juvenile court’s discretion as to whether waiving its
otherwise-exclusive jurisdiction is appropriate in the particular case”); Moore v.
State, 446 S.W.3d 47, 50 (Tex. App.—Houston [1st Dist.] 2014), aff’d, 532
S.W.3d 400 (Tex. Crim. App. 2017); Matthews v. State, 513 S.W.3d 45, 55–56
(Tex. App.—Houston [14th Dist.] 2016, pet. denied) (relying on Moon); In re H.Y.,
512 S.W.3d at 479.
The Court of Criminal Appeals explained the appellate courts’ standard of
review of a lower court’s findings of fact and conclusions of law in an order
14 transferring proceedings from juvenile court to criminal district court in Moon.
Under this standard,
In deciding whether the juvenile court erred to conclude that the 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 or 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?
Moon, 451 S.W.3d at 47; Matthews, 512 S.W.3d at 56.
Moon emphasized the importance of the juvenile court’s making the
determinations required by section 54.02 before waiving its jurisdiction and
transferring the case. See 451 S.W.3d at 46–47 (citing TEX. FAM. CODE
§ 54.02(a)); see also In re T.S., 548 S.W.3d 711, 720 (Tex. App.—Houston [1st
Dist.] 2018, no pet.) (discussing standard set out in Moon). The Moon court, like
the Moore court after it, “made clear that . . . if the juvenile court waives
jurisdiction, it must ‘state specifically’ in its order its reasons for waiver.” In re
T.S., 548 S.W.3d at 721 (quoting Moon, 451 S.W.3d at 41). It must “spread[] 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, principled, and reasonable.” Id.
(quoting Moon, 451 S.W.3d at 49).
15 Each case from this Court that has reviewed findings of fact and conclusions
of law in regard to a waiver of juvenile court jurisdiction and transfer to district
court has followed Moon. See, e.g., id. In several recent opinions, this Court has
specified that, in a transfer case, the juvenile court must consider and make
findings in the transfer order as to each of the four statutory factors set out in
Family Code section 54.02(f), which are recited above. See id.; Ex parte Arango,
518 S.W. 3d 916, 920–21 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); see
also Matthews, 513 S.W.3d at 55–56 (ruling of Fourteenth Court of Appeals,
holding same). In addition, as stated above, if section 54.02(j) applies—i.e., if the
transfer hearing takes place after the person’s eighteenth birthday—the juvenile
court must also make the findings required by subsection 54.02(j), including the
practicability finding that is at issue here.
“[I]n 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.’” Moon, 451 S.W.3d at 47; see In re T.S., 548 S.W.3d at 721. Specifically,
[I]n conducting a review of the sufficiency of the evidence to establish the facts relevant to the Section 54.02(f) factors and any other relevant historical facts, which are meant to inform the juvenile court’s discretion whether the seriousness of the offense alleged or the background of the juvenile warrants transfer for the welfare of the community, the appellate court must limit its sufficiency review to the facts that the juvenile court expressly relied upon, as required to be explicitly set out in the juvenile transfer order under Section 54.02(h). 16 Moon, 451 S.W.3d at 50 (emphasis added); In re T.S., 548 S.W.3d at 722. This
Court stated emphatically in Matthews: “The Moon court . . . emphasized that . . .
if the juvenile court waives jurisdiction it must ‘state specifically’ in its order its
reasons for waiver,” and we concluded that “we ‘should not be made to rummage
through the record for facts that the juvenile court might have found, given the
evidence developed at the transfer hearing, but did not include in its written
transfer order.’” 513 S.W.3d at 56 (quoting Moon, 451 S.W.3d at 49–50)
(emphasis in original).
I am also mindful of the standard for reviewing mixed questions of law and
fact set out by the Court of Criminal Appeals in State v. Garcia. In that case, the
Court of Criminal Appeals addressed in detail the standard of appellate review
when “the trial judge is required to make findings of fact and conclusions of law
expressing the basis for his ruling.” State v. Garcia, 569 S.W.3d 142, 148 (Tex.
Crim. App. 2018). The court recited the established standard:
Reviewing courts should afford “almost total deference” to the trial judge’s findings on matters of historical fact, especially when those findings “are based on an evaluation of credibility and demeanor.” But “application[s] of law to fact” or “mixed questions of law and fact” are entitled to deference only if they “turn[] on an evaluation of credibility and demeanor.” Otherwise, they are reviewed de novo.
Id. (internal citations omitted) (emphasis added).
17 Garcia centered around “interrelated issues” raising questions as to “(1) . . .
which of the trial judge’s findings and conclusions are entitled to deference; (2)
which of the trial judge’s findings and conclusions are reviewable de novo; and (3)
which of the trial judge’s findings and conclusions are relevant to determining [the
ultimate question].” Id. at 148–49. The court therefore determined to “lay out
some of the factors that informed the trial judge’s decision in this case and attempt
to describe, item by item, both the deference owed to the trial judge in that regard
and the relevance each item should have in determining [the ultimate question].”
Garcia, 569 S.W.3d at 149.
In particular, Garcia instructs, “in assessing the reasonableness of an
officer’s actions [under the circumstances and law of the case] a reviewing court
should take into account not only the facts known to the officer, but also the
‘specific reasonable inferences which he is entitled to draw from the facts in light
of his experience,’” necessitating “an inquiry into whether a particular inference
was, or was not, ‘reasonable’ under the circumstances.” Id. at 151 (emphasis
added). However, as the Court of Criminal Appeals pointed out, this “finding” of
reasonableness is not a finding at all, but a legal conclusion, and is, therefore,
subject to de novo review. Id.
The exact same sorts of interrelated issues that characterized Garcia are
involved here in determining whether the juvenile court abused its discretion in
18 concluding, on the basis of reasonable inferences from findings of historical fact,
that the State proved by a preponderance of the evidence that concluding
proceedings in the juvenile court before A.M.’s eighteenth birthday was not
practicable. Here, as in Garcia, the juvenile court’s findings of historical facts, as
long as they find support within the record, are entitled to deference and are
“highly relevant” to deciding the legal issues, as they “clearly and properly
informed the trial judge’s determination of whether there was time” to conclude
juvenile proceedings before A.M.’s eighteenth birthday. See id. at 149.
The majority in this case reverses the mandates of the Court of Criminal
Appeals. It not only fails to follow but rejects the notion of limiting its sufficiency
review to the facts that the juvenile court expressly relied upon. It reviews the
sufficiency of the evidence according to what it thinks should have been facts upon
which the juvenile court based its review and alternative courses of action not
taken but that it deems should have been taken and would have been sufficient, in
its judgment, to justify a practicability finding. And it rummages through the
record “for facts the juvenile court might have found, given the evidence developed
at the transfer hearing, but did not include in its written transfer order,’” exactly
contrary to Matthews. See 513 S.W.3d at 56.
The majority does not defer to the trial court’s findings and reasonable
inferences therefrom. It ignores many of the pertinent facts showing both what the
19 officers did and what activities the State was required to complete to prepare for
the transfer hearing. Instead, it concludes that the trial court’s fifty findings of fact
in support of its transfer order are all simply irrelevant because they are not
findings that meet the majority’s own criteria. That is, the findings do not state
that the juvenile court found witnesses credible, and they do not state that it was
not practicable (under its unexplained criterion of “practicability”), i.e., humanly
possible, to complete proceedings in the juvenile court had every heroic measure
and short-cut possible been undertaken to complete the case against A.M. before
his eighteenth birthday, even if it meant arresting A.M. as soon as the investigating
officer thought he had probable cause to arrest him under the law of parties, even
though, in that officer’s judgment, it was important to get physical evidence to tie
A.M. to the scene of the crime, and even if it meant rushing scientific studies of the
evidence of the crime and not waiting for the completeness report, and even though
the case must be dismissed if the juvenile court determines the probable cause
standard was not met.
In the majority’s analysis, the investigation and proceedings should have
been driven solely by the fact that A.M.—one of many persons identified in
connection with the complainant’s gang-related murder over the course of the
sweeping investigation—would turn eighteen five months after he was first placed
by witnesses at the scene of the murder and so he must be arrested and charged as
20 the murderer, regardless of the state of the proof, and all necessary prerequisites to
transfer completed before his birthday or the proceedings against him would be
dismissed.
Likewise, the majority does not take into account the reasonableness of the
inferences the investigating officers were entitled to draw “under the
circumstances” in light of their experience, and that the juvenile court was allowed
to credit, as instructed by Garcia. See 569 S.W.3d at 150. These would include,
for example, the inference that it was reasonable to allow the investigative process
to take its normal course to its conclusion and that, therefore, it was unnecessary to
arrest A.M. in October 2011, since he was already in juvenile detention, and that it
made sense to seek physical evidence linking him to the crime scene to support a
probable cause statement in his affidavit and to analyze the evidence found under
standard law enforcement procedures, and thereby to determine the truthfulness of
A.M.’s identification by witnesses as being at the murder scene and the extent of
his involvement in the crime in order to enhance the chances that the probable
cause finding indispensable to criminal prosecution would be made by the juvenile
court.
The majority substitutes its own judgment for the officer’s and determines
that everything the officers did was unreasonable by the majority’s own standards,
which are honed in solely on meeting the deadline for concluding proceedings in
21 juvenile court before A.M.’s eighteenth birthday. Nor does the majority defer at
all to the juvenile court’s historical findings of fact, although mandated to afford
them almost total deference by Garcia. See 569 S.W.3d at 148; see also Moon, 451
S.W.3d at 49–50 (holding that reviewing court should measure sufficiency of
evidence to support juvenile court’s stated reasons for transfer by considering
sufficiency of evidence to support facts as they are expressly found by juvenile
court in its certified order).
There could be no clearer case of an appellate court “‘rummag[ing] through
the record for facts that the juvenile court might have found, given the evidence
developed at the transfer hearing, but did not include in its written transfer order,’”
exactly contrary to Moon and Matthews. See Matthews, 513 S.W.3d at 56 (quoting
Moon, 451 S.W. 3d at 50). And there could be no clearer case of an appellate
court’s second-guessing both the investigators and the discretion of the juvenile
court in implicitly finding that the gap following the time Lieutenant Terry was
first told by Wilbourn that “Tony T” (A.M.) had tried to sell him “the gun ‘that
was used to kill ole boy,’” Slip Op. at 11, was immaterial to its decision that it was
not practicable to conclude the proceedings in juvenile court before A.M.’s
eighteenth birthday. See In re J.W.W., 507 S.W.3d 408, 413 (Tex. App.—Houston
[1st Dist.] 2016, no pet.) (“As with any decision that lies within the discretion of
22 the juvenile court, the salient question is not whether we might have decided the
issue differently.”) (citing Moon, 451 S.W.3d at 49).
At the same time, the majority fails almost entirely to opine on the many
statutory prerequisites that had to be fulfilled after the investigation was completed
and A.M. was transferred to Harris County from detention in Fort Bend County
and detained on the murder charge and before the decision to transfer the case to
criminal district court could be made, except to find it unreasonable for the
juvenile court not to have required an expedited psychological study of A.M. The
majority does not concern itself with what it might have taken for the juvenile
court to obtain that report before March 27, when it was delivered. And it is
heedless of the time required to complete other statutory requirements, including
not only “a complete diagnostic study,” but also a “social evaluation, and full
investigation of the child, his circumstances, and the circumstances of the alleged
offense,” the collection of “written reports from probation officers, professional
court employees, . . . professional consultants,” and other witnesses, and the
provision to the attorney for the child and the prosecuting attorney of “all written
matter to be considered by the court in making the transfer decision.” TEX. FAM.
CODE § 54.02(c), (d), (e).
Nor does the majority consider the determination the juvenile court was
required to make before ordering the proceedings against A.M. transferred to
23 criminal district court, which is to answer the question whether the best interests of
the minor and also the best interests of society are furthered by maintaining
jurisdiction in the juvenile court or by transferring the minor to district court for
adult proceedings because of the seriousness of the offense or the minor’s
background and the welfare of the community. In re D.L.N., 930 S.W.2d at 255.
It is to assist the juvenile court in making these determinations that the court is
required by law to consider the four factors set out in section 54.02(f)—including
“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”—as well as, when the transfer hearing is not held
before the juvenile’s eighteenth birthday, whether the proceedings could
reasonably have been dealt with in juvenile court before the minor’s eighteenth
birthday. See Moore, 532 S.W.3d at 404–05; In re D.L.N., 930 S.W.2d at 258.
Under the established standard of review, the majority could not have
reasonably concluded that the juvenile court abused its discretion in finding that it
was not practicable to conclude the proceedings in juvenile court before A.M.’s
eighteenth birthday, and it could not have reasonably concluded that A.M.’s rights
were trampled in this case, that he should be protected against criminal
prosecution, and that criminal proceedings against him must be dismissed,
regardless of the threat he poses to the community.
24 I would decide this case under the governing standards of review of a
juvenile court’s transfer order set out above. See Moore, 532 S.W.3d at 405;
Moon, 451 S.W.3d at 46–47. I would afford almost total deference to the historical
findings of fact of the juvenile court, and I would review de novo mixed questions
of law and fact to determine whether they support the juvenile court’s conclusions
as reasonable. See Garcia, 569 S.W.3d at 148–49; see also Moon, 451 S.W.3d at
46–47 (“As long as the appellate court can determine that the juvenile court’s
judgment was based upon facts that are supported by the record, it should refrain
from interfering with that judgment absent a scenario in which the facts identified
in the transfer order . . . bear no rational relation to the specific reasons the order
gives to justify [its findings].”). I would determine that the juvenile court did not
abuse its discretion in ordering transfer of the proceedings against A.M., and I
would enter judgment accordingly.
C. The Juvenile Court’s Findings of Fact and Transfer Order
The juvenile court made fifty findings following A.M.’s transfer hearing to
determine whether it was practicable to conclude the proceedings against him in
juvenile court before his eighteenth birthday. These findings and the record
evidence present the following scenario.
25 1. Law enforcement’s investigation of Sullivan’s murder
On April 20, 2010, A.M. was placed on juvenile probation for an unrelated
crime in Harris County, Texas. The probation was transferred to Fort Bend County
for supervision.
On August 26, 2010, the complainant, seventeen-year-old Kristian Sullivan,
who was a member of the gang “Forever About Bread” and also known as “K-Su,”
was shot multiple times by an unknown assailant and killed outside his home in
Missouri City, Texas, in a gang-related shooting. No weapons were found at the
scene, and no eye-witnesses came forward. Two different brands of cartridge
casings were found, but they were of the same caliber. The police suspected, but
were not sure, that there were two gunmen. At the time of Sullivan’s murder, A.M.
was sixteen years and five months old.
Before Sullivan’s death, there had been “numerous, numerous crimes,
shooting, fights, that were going on” between feuding gang members. While police
were still on the scene of Sullivan’s murder, another shooting occurred at the home
of a rival “100 Clikk” gang member. The shooting appeared to be in retaliation for
Sullivan’s murder.
During the intensive investigation of the second murder that immediately
followed Sullivan’s killing, several members of the 100 Clikk gang were identified
26 as persons of interest, including “Black Mike,” who was identified by gang
member Darius Pye on August 28.
On August 30, 2010, A.M. was detained by the Missouri City Police
Department on an unrelated charge.
On September 1, the police identified Black Mike as Michael Wilton and
interviewed him. He provided a possible alibi. The investigation continued, and
other suspects were identified and interviewed.
On September 7, two weeks after the killing, the police requested grand jury
subpoenas for phone records of the complainant in an attempt to generate leads.
They continued to interview gang members and to follow up on leads.
On September 16, police sent gunshot residue collected from one suspect to
a lab for testing.
On October 11, they collected Sullivan’s clothing from the Medical
Examiner’s office and found an additional cartridge casing.
On October 25, A.M. was placed on formal juvenile probation on an
unrelated charge.
The lack of evidence and the reticence of gang members to speak with the
police made the murder investigation difficult. Sullivan was “very involved” in the
leadership of the FAB gang. Sullivan’s residence was typically where FAB gang
members would “hang out.” Sullivan’s friends were not cooperative with the
27 police; there was testimony at the transfer hearing that “traditionally gang members
don’t just come to police with information.” Police had multiple names of suspects,
but researching those names, and generating and corroborating information, took
substantial time. Although not included in the findings of fact, the record shows
that Police Sergeant K. Tullos testified that any member of 100 Clikk “would be a
possible suspect at the time.” Around the time of Sullivan’s murder, 100 Clikk had
about 300 members.
A.M.’s name was first mentioned on December 6, 2010, by a senior member
of 100 Clikk, Michael Wilbourn, who was then in federal custody for aggravated
robbery. Wilbourn identified “Tony T” as a person who wanted to sell him “a gun
used to kill ole boy.” Missouri City Police Lieutenant R. Terry testified that
Wilbourn did not implicate himself in the murder and was not credible. At that
point, there was nothing to corroborate Wilbourn’s statement, but Lieutenant Terry
“still [had] to follow up on his statement just to verify.”
Police learned that Tony T’s real name was A.M. A.M. was a student at
Marshall High School, and he lived just outside Missouri City. Lieutenant Terry
went to A.M.’s address, but he found a vacant house. Lieutenant Terry later
learned that A.M. was in juvenile detention in Fort Bend County, but he did not
speak with A.M. at that time. Lieutenant Terry then learned that A.M. had been
released from juvenile detention on December 8, 2010. Lieutenant Terry did not
28 attempt to locate A.M., in part because he did not believe he could get information
about a juvenile on probation.
From December 2010 through June 2011, both the Missouri City Police
Department gang unit and the tri-city Special Crimes Unit (SCU) conducted
multiple gang sweeps, attempted widespread gang documentation, and ran
organized patrol action plans in an attempt to suppress gang activity, document
gang members, and generate leads in Sullivan’s murder. The SCU was “busy”—
over 100 gang members were entered into the Department of Public Safety
database during this time, and a lot of information was coming in.
During this time, on March 30, 2011, A.M. turned seventeen. On May 9,
2011, A.M. was committed to the Texas Juvenile Justice Department (TJJD) on an
indeterminate commitment for an unrelated felony.
On June 3, 2011, police returned to A.M.’s last known home address, were
again unable to make contact with him, and learned that the house had been sold at
foreclosure.
Also on June 3, 2011, in anticipation of the promotion of the lead
investigator, the Missouri City Police Chief turned the investigation over to the
SCU.
On June 10, police attempted to generate leads by submitting evidence to be
entered into the DNA database.
29 On June 13, SCU investigators spoke to 100 Clikk member Darius Pye, “a
respected high-ranking gang member,” who implicated a fellow gang member,
Sterlyn Edwards, in the murder. Pye said that, after the murder, he was in a car
driven by Edwards, who was talking on the phone to a rival FAB gang member.
According to Pye, Edwards told the rival gang member, “I’ll bang, bang you like I
bang, bang K-Su.” The record reflects that the police considered this to be the first
break in the case, but this information still needed to be corroborated.
On August 18, 2011, SCU investigators met with Donald Reed, another
member of 100 Clikk, who said that Darius Downer, also a member of 100 Clikk,
had told him that Edwards shot Sullivan. The investigators spoke with Downer,
who said that Edwards had tried to sell him a gun after Sullivan’s murder. Downer
was the second 100 Clikk member to implicate Edwards, a fellow 100 Clikk
member, and investigators thought this information was credible.
SCU investigators learned that a week before Sullivan’s murder someone
named “Rene” was shot at Downer’s house by FAB gang members. Investigators
met with Rene, who was still recovering from his gunshot wound. Rene said one of
his best friends was A.M. The record reflects that the information that one of
A.M.’s best friends had been shot by FAB gang members provided the officers
with a possible motive for Sullivan’s murder.
30 On August 23, 2011, investigators went to speak with Wilbourn. Since his
December 2010 interview, Wilbourn had been convicted of bank robbery and was
then serving a fifteen-year prison sentence. Wilbourn implicated 100 Clikk in
Sullivan’s murder. Wilbourn told investigators that Edwards was involved in the
murder of Sullivan and that A.M. had tried to sell him a gun that A.M. claimed was
involved in the murder. Wilbourn said that Edwards and A.M. had borrowed a tan
or cream Ford Taurus from some girls from Pearland and that they drove that car to
commit the murder.
On August 29, investigators interviewed FAB gang member Allen
Henderson. Henderson said that, during a phone conversation he had had with
Edwards, Edwards threatened to “bang, bang him like he did K-Su.” The record
reflects that Henderson gave no information about A.M.
On October 11, 2011, having learned that Edwards was incarcerated in the
Texas Department of Criminal Justice (TDCJ), investigators interviewed Edwards
for the first time. During the interview, Edwards implicated himself and two other
gang members—A.M. and Joshua Patterson, or “J-Pat”—in Sullivan’s murder.
Edwards said that he arranged for Patterson and A.M. to buy marijuana from
Sullivan. After Edwards set up the marijuana deal, Kandace Hall drove Patterson
and A.M. to Sullivan’s house, where they committed the murder. The record
31 reflects that this was the first time that investigators actually considered A.M. to be
a suspect in Sullivan’s murder.
On October 14, 2011, investigators spoke with Samon Williams. She stated
that she used to own a tan or pewter Ford Taurus, which matched the description
provided by Wilbourn in the August 2011 interview and that it was used in the
murder. The record contains her testimony that, on the night Sullivan was killed,
Williams was hanging out at A.M.’s house with A.M., Patterson, and Hall, among
others. Williams said that Hall, Patterson, and A.M. left the house in her car but
she knew something was going on, so she stayed back and went to her boyfriend’s
house down the street. When Hall, Patterson, and A.M. returned, Edwards was
with them. Later that night, Williams and Hall dropped off A.M., then they
dropped off Edwards, and finally they dropped off Patterson. When they arrived at
Patterson’s house, Patterson put a gun in the hood of the car, and Hall told
Williams that the gun was used to “kill that boy.”
On October 15, 2011, investigators interviewed Hall, who corroborated
Williams’s statement and said she drove with A.M., Patterson, and Edwards to
Sullivan’s house. The record contains Hall’s testimony that, on the night of the
shooting, they were at A.M.’s house, and A.M. and the other gang members were
talking about something in gang language or jail code, which she did not
understand. Hall went on the marijuana run with them, noting that Patterson was
32 driving the car and that Edwards and A.M. were passengers. When they arrived at
Sullivan’s house to buy the marijuana, Edwards and A.M. got out of the car. Hall
then heard several gunshots, and Edwards and A.M. came running back to the car.
Edwards told them to “go, go, go” and indicated that he had shot someone.
Sergeant Ramirez considered the information given by Williams and Hall
credible. However, neither of them saw A.M. shoot Sullivan or saw him hold a
gun. Still, the use of two different brands of ammunition to shoot Sullivan
indicated there might have been two shooters.
The record also contains the chief investigator’s testimony that, after
speaking with Williams and Hall, he believed that Edwards, Patterson, and A.M.
were all involved in the murder, at least as parties to the offense. But he did not
believe the police were ready to request warrants for arrests. He testified that he
still needed to speak with Patterson, who he believed acted as the getaway driver.
On October 21, 2011, an automobile was identified as being involved in the
murder.
On October 25, 2011, investigators met with Patterson at the police
department. Patterson gave a statement that corroborated the statements of
Williams and Hall. Patterson’s statements were consistent with there being two
shooters.
33 That same day, Sergeant Ramirez obtained an arrest warrant for Patterson,
and he was subsequently arrested. The record contains the chief investigator’s
testimony that because both Edwards and A.M. were already in custody,4 he was
not concerned with getting warrants for their arrest in this case. Patterson was the
only person who participated in the murder who was not already in custody and
therefore could potentially hurt the female witnesses who had provided evidence
against the suspects. Also, at that point, the investigator was concerned that he had
no physical evidence to corroborate A.M.’s involvement. Investigators were
waiting on laboratory results regarding DNA testing on the shell casings and
firearms examinations.
On October 26, 2011, officers located Williams’s Taurus, which four
witnesses—Wilbourn, Williams, Hall, and Patterson—had said was used in the
murder. The Taurus had been repossessed and resold, but it was recovered and
processed for blood evidence and anything related to the murder. It contained no
evidence.
On October 31, 2011, the investigators referred the whole case to the Fort
Bend County District Attorney’s Office and filed an offense report recommending
that A.M., Patterson, and Edwards be arrested and charged with murder. However,
the record reflects that the lead investigator did not sign a probable cause affidavit
4 At the time, A.M. was still detained by TJJD. 34 or obtain a directive to apprehend A.M. at that time. Rather, he testified that,
although his October 2011 report requested A.M.’s arrest, he did not intend to
arrest A.M. at that time because he needed “some physical evidence to help
corroborate” the testimony against him.
On November 3, 2011, the firearms examiner began a firearms analysis of
the casings evidence.
The next day, November 4, Turner, the firearms examiner, completed her
analysis and reached a preliminary opinion that two guns had been used in the
On November 17, 2011, a required “technical review” of the examination
was conducted and the results were then available for verbal release.
On January 11, 2012, a DNA report was completed showing negative results
for blood on swabs from the car. No evidence was found in the Taurus.
On January 27, a required final administrative review of the firearms
examination was conducted and released to the police.
That same day, investigators received a verbal confirmation from the
firearms lab that two guns had been used in the murder. This was the first physical
evidence to indicate that there were two shooters.
Investigators immediately obtained a formal directive to apprehend A.M.
See TEX. FAM. CODE § 52.015(a) (“On the request of a law-enforcement or
35 probation officer, a juvenile court may issue a directive to apprehend a child if the
court finds there is probable cause to take the child into custody under the
provisions of this title.”).
2. A.M.’s arrest and proceedings in juvenile court
On January 30, 2012, three days after the directive to apprehend A.M. was
issued and eight weeks before his eighteenth birthday, the directive to apprehend
was executed at TJJD, and A.M. was taken to Fort Bend County Juvenile
Detention.
On February 1, 2012, an initial detention hearing was held in Fort Bend
County and a finding of probable cause made.
On February 13, 2012, six weeks before A.M.’s eighteenth birthday, the
State filed its petition for a discretionary transfer to criminal district court under
Family Code section 54.02 and a motion for a psychological examination pursuant
to section 54.02(d).
On February 22, 2012, the juvenile court ordered a psychological evaluation
of A.M. See id. § 54.02(d) (“Prior to the hearing [on the petition for transfer], the
juvenile court shall order and obtain a complete diagnostic study, social evaluation,
and full investigation of the child, his circumstances, and the circumstances of the
alleged offense.”). The juvenile court appointed Dr. Karen Gollaher to conduct the
evaluation, based on her educational background and experience in conducting
36 psychological examinations pursuant to section 54.02. The court ordered “a full
and thorough study of the background and circumstances of [A.M.],” but
information Gollaher needed for her evaluation was not sent to her by the Fort
Bend County Juvenile Probation Department for more than a month.
On March 26, 2012, due to A.M.’s impending eighteenth birthday, the State
requested and the juvenile court signed an order that A.M. be transferred from Fort
Bend County Juvenile Detention to Fort Bend County Jail, as the former does not
house adults. The next day, the Probation Department’s Psychology Division
forwarded to Gollaher the information she needed for her psychological evaluation.
On March 30, 2012, A.M. turned eighteen.
On April 5, 2012, Dr. Gollaher performed her psychological evaluation of
A.M. She completed her report later that month, and the juvenile court released the
report to all parties.
The record reflects that, on June 8, 2012, A.M.’s assigned juvenile probation
officer, Heather Boswell, completed her social home study report, which could not
be completed before receipt of the psychological evaluation.
On June 12, 2012, the juvenile court held a hearing on the State’s petition to
transfer. The record reflects that the prosecutor described the hearing as “a
traditional discretionary transfer hearing.” The prosecutor observed that A.M. had
turned eighteen on March 30 but that the State had filed its petition for
37 discretionary transfer while A.M. was seventeen years old. The prosecutor
argued—based on the prosecutor’s understanding of the statute at the time—that
the juvenile court’s decision whether to transfer the case was governed by section
54.02(a), not section 54.02(j), which the prosecutor believed only applied when the
State files its petition to transfer after the juvenile’s eighteenth birthday. According
to the prosecutor, because the petition was filed “well before” A.M.’s eighteenth
birthday, section 54.02(j) was “never triggered.” But see Morrison, 503 S.W.3d at
727–8 (holding that Section 54.02(j) applies when transfer occurs after defendant
turns eighteen even if petition is filed before birthday).
On June 13, 2012, following the hearing, the juvenile court waived its
jurisdiction and ordered the case transferred to criminal district court, where A.M.
was tried, convicted, and sentenced to forty-five years in prison.
A.M. appealed his conviction to the Fourteenth Court of Appeals, which
found that the juvenile court had abused its discretion in waiving its jurisdiction
and transferring the case to criminal district court without making the findings
required by section 52.04(j), vacated the criminal district court’s judgment and
A.M.’s sentence, and ordered the case remanded to the juvenile court for a finding
as to whether conclusion of the proceedings in juvenile court was not practicable
before A.M.’s eighteenth birthday. That court found on remand that it was not
practicable to have completed the proceedings against A.M. before his eighteenth
38 birthday, and it again waived its jurisdiction and transferred the case to district
court. A.M. again appealed.
D. Review of the Juvenile Court’s Order for Abuse of Discretion
I would review the juvenile court’s findings of fact and conclusions of law
on the practicability of concluding proceedings in the juvenile court before A.M.’s
eighteenth birthday to determine whether the juvenile court’s finding that all law
enforcement, prosecutorial, and juvenile proceedings could not “reasonably have
been dealt with” prior to A.M.’s eighteenth birthday was itself reasonable. I would
include in that determination “whether a reasonable law-enforcement inference
was available on particular facts,” as this “is often highly relevant to resolving
[legal] issues [such as those in this case].” Garcia, 569 S.W.3d at 152. If
reasonable, the law enforcement officers’ and the trial court’s inferences should be
considered in determining whether, as a matter of law, the State proved its case.
See id. I would also be mindful of the Court of Criminal Appeals’ instruction that,
“[o]nce the preceding matters are settled, the trial judge should finally decide
whether, in light of the known facts and reasonable inferences therefrom, an
objectively reasonable officer [of the court] would conclude that” completion of
juvenile proceedings before A.M.’s eighteenth birthday was practicable. See id.
And I would be mindful that we review this inquiry de novo. See id.
39 Having reviewed the reasonableness of law enforcement’s investigation and
prosecution of the case de novo, as reflected in the record, and having reviewed the
juvenile court’s findings of fact for their reasonableness in light of Moore, I would
conclude that all of the factors present here show that, for reasons beyond the
control of law enforcement and the prosecutors, A.M.’s case could not reasonably
have been dealt with when he was still a juvenile. These factors include the length
of time required to identify A.M. as a suspect, to identify his role in the murder, to
identify the vehicle used to transport the murderers to the murder scene, to inspect
the vehicle fruitlessly for physical evidence, to discover casings from the murder
scene and to send them to the firearms examiner for a complete examination in
accordance with standard law enforcement procedures before it could be
determined that A.M.’s weapon was used in the murder, and, after A.M. was
identified as a shooter, to transfer him from detention in Fort Bend County to
Harris County, to hold a hearing and find probable cause to charge and detain him,
and to fulfill all the statutory prerequisites to transfer or dismissal of the charges in
accordance with professional standards. Cf. Moore, 532 S.W.3d at 402.
I would conclude that the juvenile court correctly determined that the
conclusion of juvenile court proceedings before A.M.’s eighteenth birthday was
not practicable under the circumstances of this case and its order waiving its
jurisdiction and transferring the murder case against A.M. to district court were
40 both reasonable in that its determinations was based on known facts and reasonable
inferences therefrom. See Garcia, 569 S.W.3d at 152. Accordingly, I would hold
that the juvenile court did not abuse its discretion in waiving its jurisdiction and
transferring the murder case against A.M. to criminal district court.
Conclusion
I would affirm the order of the juvenile court transferring the case against
A.M. to criminal district court pursuant to Family Code section 54.02.
Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Higley, and Landau.
Justice Keyes, dissenting.
Related
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