in the Matter of H. Y.

• Court: Court of Appeals of Texas
• Decided: December 6, 2016
• Docket: 01-16-00501-CV
• Status: Published

Opinion

Opinion issued December 6, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-16-00501-CV ——————————— IN THE MATTER OF H.Y.

On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2013-01505J

OPINION

This is an accelerated appeal from the juvenile court’s second order waiving

jurisdiction and transferring H.Y. to criminal district court to stand trial as an adult.

H.Y. was previously transferred, but a panel of this Court reversed that order

pursuant to Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014), because it did

not include the findings required by the Juvenile Justice Code for transfer pursuant to section 54.02(a). Yado v. State, No. 01-14-00578-CR, 2015 WL 3982045, at *1

(Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.). On remand, the juvenile

court again waived its jurisdiction and certified H.Y., who was at that point over the

age of 18, to stand trial as an adult.

On appeal, H.Y. argues that (1) the juvenile court improperly admitted

evidence at the transfer hearing in violation of the Texas Rules of Evidence and Code

of Criminal Procedure, (2) Juvenile Justice Code section 54.02(j), which governs

transfer of those who have reached the age of 18, violates the equal protection

clauses of the United States and Texas constitutions, and (3) insufficient evidence

supports the juvenile court’s findings supporting transfer. We affirm.

Background

First transfer and appeal

In March 2013, the State filed a petition in Harris County juvenile court

alleging that H.Y., at age 16, engaged in delinquent conduct by committing

aggravated robbery with a deadly weapon. Two months later, in May 2013, the State

moved to transfer H.Y. to criminal district court to be tried as an adult pursuant to

section 54.02(a) of the Juvenile Justice Code. The juvenile court held a hearing on

the motion and signed an order in July 2013 waiving its jurisdiction and transferring

H.Y. to criminal district court.

2 In the criminal district court, H.Y. entered into a plea agreement with the

State, and pursuant to that agreement, the district court assessed punishment at ten

years’ imprisonment, but certified H.Y.’s right to pursue appeal of the juvenile

court’s transfer order. 1 Yado, 2015 WL 3982045, at *2. On appeal, this Court held

that the juvenile court did not make the statutorily-required findings to support the

transfer, vacated the district court’s judgment, dismissed the criminal district court

case, and remanded the case to the juvenile court. Id.

Proceedings on remand

H.Y. had turned 18 years old by the time this Court’s mandate issued in

September 2015. On remand, the State again moved to transfer H.Y. from the

juvenile court to the criminal district court pursuant to section 54.02(a). H.Y.

responded, opposing the motion on several grounds, including that section 54.02(a)

only permits transfer of those 17 years of age and younger. The State subsequently

filed an amended petition and motion to transfer seeking to transfer H.Y. pursuant

to section 54.02(j) of the Juvenile Justice Code, which governs transfers from

juvenile court when the person is 18 years of age or older.

1 In 2013, a transfer order was not immediately appealable and could be challenged only on appeal from a final conviction. In 2015, the Legislature amended Family Code section 56.01(c) to allow an interlocutory appeal from a juvenile court’s transfer order to criminal district court issued on or after September 1, 2015. See Act of May 12, 2015, 84th Leg., R.S., ch. 74, § 3, 2015 Tex. Gen. Laws 1065, 1065.

3 Second transfer hearing

Equal protection argument

The juvenile court held a hearing on the motion to transfer. At the hearing,

H.Y. argued that section 54.02(j) violated the equal protection clauses of the Texas

and United States constitutions because it enabled the State to transfer a person who

has reached the age of 18 more easily than a person under the age of 18. H.Y.

contended that juveniles are a suspect class and that the statute unlawfully penalized

him for prevailing in his first appeal by making it easier for the State to transfer him

on remand since he had reached the age of 18. The trial court overruled H.Y.’s equal

protection argument.

Testimony and evidence regarding offense

Sergeant R. Opperman of the Houston Police Department, the sole witness at

the hearing, testified that he was working an approved extra job on March 3, 2013,

when he heard over the radio that three Hispanic males had just robbed a man at

gunpoint and stolen his wallet. Another officer located the suspects driving a

previously stolen vehicle. The suspects fled, crashing the car in the vicinity of a

parking garage and continuing on foot.

Opperman responded to the scene and saw H.Y. jumping from the parking

garage onto a nearby hill. H.Y. matched the description of the driver of the vehicle,

4 so Opperman pursued him and took him into custody. He searched H.Y. and found

a pistol magazine in his pocket.

Opperman took H.Y. to the complainant’s location a block away where

another officer conducted a show-up procedure and the complainant identified H.Y.

as the person who had pointed a gun at him during the robbery. H.Y. was searched

and $644 was found in his shoe. Opperman testified that the complainant’s wallet

and credit card were found in the vehicle from which H.Y. had fled.

In addition to Opperman’s testimony, a number of exhibits were admitted at

the transfer hearing. Among these was the probation report, which detailed the

circumstances of the crime, including the fact that H.Y. was driving the suspect

vehicle, the evidence found on his person, and the fact that the complainant identified

H.Y. as the person who pointed a gun at him during the robbery.

Evidentiary objections

H.Y. objected to the admission of various parts of Opperman’s testimony at

the hearing on the ground that the testimony violated the Rules of Evidence or

Chapter 38 of the Code of Criminal Procedure. He argued that section 51.17(c) of

the Juvenile Justice Code makes the Rules of Evidence and Chapter 38 of the Code

of Criminal Procedure applicable to a transfer hearing and therefore the trial court

was required to exclude the complained-of evidence on this basis.

5 H.Y. objected that Opperman’s testimony about the following was

inadmissible hearsay because he heard about these events from other officers and

did not directly witness them:

 Descriptions of the alleged suspects;

 The fact that $644 was found in H.Y’s shoe;

 The fact that the complainant’s property was found in the suspect vehicle;

 The complainant’s account of the robbery and the fact that the complainant identified H.Y.; and

 The fact that H.Y. was driving the suspect vehicle.

The juvenile court overruled H.Y.’s hearsay objections.

H.Y. also objected to the admission of Opperman’s testimony regarding the

complainant’s show-up identification of H.Y. and the $644 found in H.Y.’s shoe

while he was at the show-up location on the grounds that this evidence was illegally

obtained. H.Y. argued that section 52.02 of the Juvenile Justice Code required

Opperman to take H.Y. directly to the juvenile processing office and did not permit

Opperman to bring H.Y. to the complainant’s location for a show-up identification.

Section 52.02 provides in relevant part:

[A] person taking a child into custody, without unnecessary delay and without first taking the child to any place other than a juvenile processing office designated under Section 52.025, shall do one of the following:

6 (1) release the child to a parent, guardian, custodian of the child, or other responsible adult upon that person’s promise to bring the child before the juvenile court as requested by the court;

(2) bring the child before the office or official designated by the juvenile board if there is probable cause to believe that the child engaged in delinquent conduct, conduct indicating a need for supervision, or conduct that violates a condition of probation imposed by the juvenile court;

(3) bring the child to a detention facility designated by the juvenile board;

(4) bring the child to a secure detention facility as provided by Section 51.12(j);

(5) bring the child to a medical facility if the child is believed to suffer from a serious physical condition or illness that requires prompt treatment;

(6) dispose of the case under Section 52.03; or (7) if school is in session and the child is a student, bring the child to the school campus to which the child is assigned if the principal, the principal’s designee, or a peace officer assigned to the campus agrees to assume responsibility for the child for the remainder of the school day. TEX. FAM. CODE § 52.02(a). H.Y. argued that this testimony should therefore be

excluded pursuant to Chapter 38 of the Code of Criminal Procedure. See TEX. CODE

CRIM. PROC. art. 38.23 (no evidence obtained in violation of the law shall be admitted

in evidence against accused on the trial of any criminal case). The juvenile court

overruled this objection.

The juvenile court signed an order waiving jurisdiction over H.Y. and

transferring him to the criminal district court. H.Y. appealed.

7 Admissibility of Evidence

H.Y.’s first nine issues rely upon his argument that Juvenile Justice Code

section 51.17 required the juvenile court to determine the admissibility of evidence

under the Rules of Evidence and Chapter 38 of the Code of Criminal Procedure at

the transfer hearing. In his first through sixth issues, H.Y. argues that the juvenile

court erred by admitting various types of hearsay testimony. In his seventh and

eighth issues, H.Y. argues that the juvenile court erred by admitting evidence

regarding the fruit of the allegedly illegal show-up identification and search of his

shoe. In his ninth issue, H.Y. contends that these errors cumulatively caused him

harm.

A. Standard of Review

We review a trial court’s decision to admit evidence for an abuse of discretion.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses

its discretion only if its decision is “so clearly wrong as to lie outside the zone within

which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579

(Tex. Crim. App. 2008). However, even if a trial court errs by admitting evidence,

any error in the admission is cured where the same evidence comes in elsewhere

without objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).

8 B. Applicable Law

The Juvenile Justice Code includes a chapter of “general provisions” that

includes definitions, jurisdictional provisions, and other guidance for juvenile

proceedings. See TEX. FAM. CODE ch. 51 (“General Provisions”). As relevant here,

section 51.17(c) provides:

Except as otherwise provided by this title, the Texas Rules of Evidence applicable to criminal cases and Articles 33.03 and 37.07 and Chapter 38, Code of Criminal Procedure, apply in a judicial proceeding under this title. TEX. FAM. CODE § 51.17(c). Section 54.02 is part of chapter 54 of the Juvenile

Justice Code, entitled “Judicial Proceedings.” TEX. FAM. CODE ch. 54.

Waiver of jurisdiction over a juvenile is governed by section 54.02 of the

Juvenile Justice Code. TEX. FAM. CODE § 54.02. Among other things, section 54.02

provides that before transferring a juvenile to be tried as an adult, 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.” TEX. FAM. CODE § 54.02(d). Section 54.02 further provides:

At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. At least five days prior to the transfer 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).

9 C. Analysis

H.Y. argues that the juvenile court erred by admitting hearsay testimony

regarding:

 The fact that the complainant’s property was found in the suspect vehicle;

 The complainant’s account of the robbery and the fact that the complainant identified H.Y.; and

He also argues that the trial court erred by admitting testimony regarding the

evidence obtained at the site of the show-up identification (i.e., the complainant’s

identification of H.Y. and the $644 in his shoe) because it was illegal for H.Y. to be

taken to the site of the show-up instead of directly to the juvenile processing center.

H.Y. argues that the admission of this testimony was error because it violated the

Rules of Evidence and Chapter 38 of the Code of Criminal Procedure, which the trial

court was required to apply pursuant to section 51.17(c) of the Juvenile Justice Code.

The State responds that even if the trial court erred by admitting this testimony, any

error in its admission was cured because similar evidence was admitted without

objection through the probation report.

Both parties agree that no published Texas case has squarely addressed

whether section 51.17(c) of the Juvenile Justice Code makes the Rules of Evidence

10 and Chapter 38 of the Code of Criminal Procedure applicable to a transfer hearing.

The State points out that a panel of this court in an unpublished decision concluded

that a juvenile court is not required to rule on the admissibility of evidence during a

transfer hearing. See Navarro v. State, Nos. 01-11-00139-CR & 01-11-00140-CR,

2012 WL 3776372, at *6 (Tex. App.—Houston [1st Dist.] Apr. 17, 2013, pet. ref’d)

(mem. op., not designated for publication). H.Y. did not address Navarro in his

opening brief or his reply to the State’s brief.

However, we need not resolve whether the Rules of Evidence or Chapter 38

of the Code of Criminal Procedure apply to juvenile transfer hearings pursuant to

section 51.17(c), because even if we were to reach this claim, it would not result in

reversal of the juvenile court’s order in this case. See TEX. R. APP. P. 47.1 (appellate

court’s opinion should address those issues necessary to disposition of appeal).

Virtually all of the evidence about which H.Y. complains was admitted in the

probation report, to which he did not object. The probation report includes:

 The complainant’s account of the robbery and the fact that the complainant identified H.Y. as the person who pointed a gun at him; and

Section 54.02(e) expressly permits a juvenile court to consider probation reports in

making its transfer decision, TEX. FAM. CODE § 54.02(e), and H.Y. did not object to

11 the admission of the probation report. Accordingly, any error in the admission of

this same evidence via Opperman was harmless. See Valle, 109 S.W.3d at 509 (any

error in admission of evidence is cured where same evidence comes in elsewhere

without objection)

The only complained-of evidence that was not included in the probation report

was the fact that the complainant’s wallet and credit card were found in the suspect

vehicle. But other equally incriminating evidence—including the fact that the

complainant identified H.Y. as the person who pointed a gun at him, that H.Y. was

driving the vehicle that fled from investigating officers, and that when apprehended,

H.Y. had a pistol magazine—was admitted without objection. We therefore

conclude that any error in the admission of evidence regarding the complainant’s

property being found in the vehicle was also harmless. Cf. Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998) (error in admission of evidence is harmless

and must be disregarded if it had no or only slight influence on verdict).

In short, H.Y. has not demonstrated that the admission of the complained-of

evidence harmed him because it was essentially cumulative of other evidence

admitted without objection. See Valle, 109 S.W.3d at 509. Accordingly, we hold

that the juvenile court’s order is not subject to reversal for admitting the complained-

of evidence. See id.

We overrule H.Y.’s first through ninth issues.

12 Equal Protection

In his tenth issue, H.Y. argues that Juvenile Justice Code section 54.02(j),

which governs the transfer of those 18 and older, violates the equal protection

clauses of the Texas and United States constitutions.

A. Standard of Review and Applicable Law

We review the constitutionality of a statute de novo, see Stockton v.

Offenbach, 336 S.W.3d 610, 614–15 (Tex. 2011), beginning with the presumption

that the statute is constitutional. TEX. GOV’T CODE § 311.021(1); Sax v. Votteler,

648 S.W.2d 661, 664 (Tex .1983); see also Ex parte Lo, 424 S.W.3d 10, 14–15 (Tex.

Crim. App. 2013), Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin, 307

S.W.3d 283, 285 (Tex. 2010). The Texas constitution provides that all free men

have equal rights, and the United States Constitution provides that no state shall deny

any person within its jurisdiction the equal protection of the laws. U.S. CONST.

amend. XIV, § 1; TEX. CONST. art. I, § 3. These standards are “essentially a direction

that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v.

Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254 (1985).

An equal protection challenge to a statute involves a two-step analysis. We

first determine the level of scrutiny required, and then apply that level of scrutiny to

the statute. Cannady v. State, 11 S.W.3d 205, 215 (Tex. Crim. App. 2000). A statute

is evaluated under “strict scrutiny” if it interferes with a “fundamental right” or

13 discriminates against a “suspect class.” Id.; Walker v. State, 222 S.W.3d 707, 711

(Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Otherwise, the challenged

statute need only be “rationally related to a legitimate governmental purpose” to

survive the equal protection challenge (the “rational-basis test”). Cannady, 11

S.W.3d at 215; Walker, 222 S.W.3d at 711; see Romer v. Evans, 517 U.S. 620, 631,

116 S. Ct. 1620, 1627 (1996) (“[I]f a law neither burdens a fundamental right nor

targets a suspect class, we will uphold the legislative classification so long as it bears

a rational relation to some legitimate end.”). When the rational-basis test applies,

the challenging party has the burden to negate “any reasonably conceivable state of

facts that could provide a rational basis for the classification.” Alobaidi v. Univ. of

Tex. Health Sci. Ctr. at Hous., 243 S.W.3d 741, 747 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied) (quoting Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.

356, 367, 121 S. Ct. 955, 964 (2001)).

The Supreme Court has described a “suspect class” as one “saddled with such

disabilities, or subjected to such a history of purposeful unequal treatment, or

relegated to such a position of political powerlessness as to command extraordinary

protection from the majoritarian political process.” Mass. Bd. of Ret. v. Murgia, 427

U.S. 307, 313, 96 S. Ct. 2562, 2567 (1976) (per curiam) (internal quotations omitted)

(holding that rational-basis test applied to mandatory police retirement age).

Examples of recognized suspect classes include classes defined by race, alienage,

14 and national origin. Cleburne, 473 U.S. at 440–41, 105 S. Ct. 3254–55. In the

absence of a suspect classification, a state law is not repugnant to the equal protection

clause so long as unequal treatment of persons is based upon a reasonable and

substantial classification of persons. Weaver v. State, 823 S.W.2d 371, 374 (Tex.

App.—Dallas 1992, pet. ref’d) (citing Vasquez v. State, 739 S.W.2d 37, 43 (Tex.

Crim. App. 1987)).

“Age has never been held to be a suspect classification requiring strict scrutiny

under an equal protection analysis; therefore, any rational basis may justify the

classification.” Id. (citing Walker v. Emps. Ret. Sys., 753 S.W.2d 796, 797 (Tex.

App.—Austin 1988, writ denied)); see also Benavidez v. State, 655 S.W.2d 233,

235–36 (Tex. App.—Corpus Christi 1983, pet. ref’d) (“It is well settled that age

alone does not establish a suspect class because it does not define a ‘discrete and

insular group’ in need of ‘extraordinary protection from the majoritarian political

process.’”) (quoting Murgia, 427 U.S. at 313, 96 S. Ct. at 2566). A legislative

classification based on age is constitutionally permissible if it is reasonable, not

arbitrary, and rests upon some ground of difference having a fair and substantial

relation to the object of the legislation, so that all persons similarly circumstanced

are treated alike. Id.

15 B. Applicable Law

The Juvenile Justice Code provides two different standards for transfer—one

for those who are under 18, and another for those who have reached the age of 18.

The primary distinction between the two standards 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. The juvenile court may waive jurisdiction

over a child under the age of 18 if it finds:

(1) the child is alleged to have violated a penal law of the grade of felony; (2) the child was:

(A) 14 years of age or older at the time he is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substance felony, or a felony of the first degree, and no adjudication hearing has been conducted concerning that offense; or

(B) 15 years of age or older at the time the child is alleged to have committed the offense, if the offense is a felony of the second or third degree or a state jail felony, and no adjudication hearing has been conducted concerning that offense; and

(3) after a full investigation and a hearing, the juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged and that because of the seriousness of the offense alleged or the background of the child the welfare of the community requires criminal proceedings.

TEX. FAM. CODE § 54.02(a). In determining whether the welfare of the community

requires criminal proceedings, the juvenile court “shall consider, among other

matters”:

16 (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. Id. § 54.02(f).

By contrast, the juvenile court may waive jurisdiction when the person before

the juvenile court has reached the age of 18 if it finds:

(1) the person is 18 years of age or older; (2) the person was:

(A) 10 years of age or older and under 17 years of age at the time the person is alleged to have committed a capital felony or an offense under Section 19.02, Penal Code;

(B) 14 years of age or older and under 17 years of age at the time the person is alleged to have committed an aggravated controlled substance felony or a felony of the first degree other than an offense under Section 19.02, Penal Code; or

(C) 15 years of age or older and under 17 years of age at the time the person is alleged to have committed a felony of the second or third degree or a state jail felony; (3) no adjudication concerning the alleged offense has been made or no adjudication hearing concerning the offense has been conducted;

(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

17 (B) after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person because:

(i) the state did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of the person;

(ii) the person could not be found; or (iii) a previous transfer order was reversed by an appellate court or set aside by a district court; and

(5) the juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged. Id. § 54.02(j).

D. Analysis

H.Y. contends that section 54.02(j) violates the equal protection clause

because it permits the State to more easily try a person as an adult for a crime he

committed as a child if the child prevails on his appeal of the original certification

order but reaches the age of 18 during the appellate process. He argues that children

are a suspect class and therefore we should apply the strict scrutiny standard. The

State responds that children are not a suspect class and therefore the statute need

only meet the rational-basis test. The State acknowledges that having a different

standard for transfer for those under 18 and 18 and over is a form of age

discrimination. However, it argues that the statutory distinction has a rational basis

because the procedures, services, and facilities available in the juvenile court are not

appropriate for those who are no longer juveniles, and making it easier for juvenile

18 courts to transfer those who “age out” enables juvenile courts to better serve their

target demographic.

It is well-recognized that age does not constitute a suspect class, and H.Y.

cites no authority that has held otherwise. Indeed, at least one Texas court has

concluded that minors are not a suspect class. See Benavidez, 655 S.W.2d at 235–

36. H.Y. notes that children are “unable to vote, . . . have lesser rights or control

over their lives, and [an] intellect [that] is not fully developed,” but this does not

demonstrate that children are “saddled with such disabilities, or subjected to such a

history of purposeful unequal treatment, or relegated to such a position of political

powerlessness as to command extraordinary protection from the majoritarian

political process.” See Murgia, 427 U.S. at 313, 96 S. Ct. at 2567 (rejecting age as

suspect class). Moreover, H.Y. is not actually complaining about the statute’s

treatment of children, but rather, the statute’s treatment of those who have reached

the age of 18 and are no longer minors. In short, H.Y. has not demonstrated that the

statute discriminates against a suspect class; accordingly, we will apply rational basis

review. Cannady, 11 S.W.3d at 215.

Because the rational-basis test applies, H.Y. bears the burden to negate “any

reasonably conceivable state of facts that could provide a rational basis” for the

statute’s dissimilar treatment of those 17 and under versus those 18 and over. See

Alobaidi, 243 S.W.3d at 747. H.Y. argues that 54.02(j) cannot survive rational basis

19 review because “[t]he government has no legitimate interest in punishing children

who successfully enforce their statutorily created rights under § 54.02(a) by

prevailing on appeal.” H.Y. argues that the Legislature recognized this and changed

the law in 2015 so that a juvenile can immediately appeal from a transfer order

instead of waiting until judgment is entered against them in the criminal district

court, as he was required to do when he was originally transferred. See Act of May

12, 2015, 84th Leg., R.S., ch. 74, § 3, 2015 Tex. Gen. Laws 1065, 1065; see also

TEX. FAM. CODE § 56.01(c).

The text of the statute negates H.Y.’s argument. The statute itself recognizes

that one of the reasons for transferring a person 18 years or older to the criminal

district court would be if the person is returned to the juvenile court after a transfer

order is reversed and the juvenile has reached the age of 18. As the State points out,

there are many reasons to have non-juveniles transferred out of the juvenile court,

including the fact that the resources of the juvenile court are designed to assist and

rehabilitate juveniles, not adults. H.Y. thus has failed to negate “any reasonably

conceivable state of facts that could provide a rational basis” for the statute’s

dissimilar treatment of those 17 and under versus those 18 and over. See Alobaidi,

243 S.W.3d at 747.

We overrule H.Y.’s tenth issue.

20 Waiver

In his eleventh issue, H.Y. argues that the juvenile court abused its discretion

by waiving jurisdiction because insufficient evidence supports two of the required

statutory factors for transferring an individual over 18 years old. Specifically, H.Y.

contends that there is insufficient evidence that (1) probable cause existed that he

committed the alleged offense, and (2) after due diligence, it was not practicable to

proceed in juvenile court before his eighteenth birthday because the previous transfer

order was reversed.

We review the trial court’s findings of fact concerning a transfer decision

under traditional sufficiency of the evidence principles. In re J.G., 495 S.W.3d 354,

369 (Tex. App.—Houston [1st Dist.], pet. filed) (citing Moon, 451 S.W.3d at 47).

Under a legal sufficiency challenge, we credit evidence favorable to the challenged

finding and disregard contrary evidence unless a reasonable factfinder could not

reject the evidence. Id. at 369–70 (citing Moon v. State, 410 S.W.3d 366, 371 (Tex.

App.—Houston [1st Dist.] 2013), aff’d, 451 S.W.3d 28 (Tex. Crim. App. 2014)). If

there is more than a scintilla of evidence to support the finding, the no-evidence

challenge fails. Id. at 370. Under a factual sufficiency challenge, we consider all of

the evidence presented to determine if the court’s finding is so against the great

21 weight and preponderance of the evidence as to be clearly wrong or unjust. Id.

(citing Moon, 410 S.W.3d at 371).

If the findings of the juvenile court are supported by legally and factually

sufficient proof, then we review the ultimate waiver decision under an abuse of

discretion standard. Moon, 451 S.W.3d at 47. As with any decision that lies within

the discretion of the trial court, the salient question is not whether we might have

decided the issue differently. Id. at 49. Instead, we ask whether the juvenile court’s

transfer decision was “essentially arbitrary, given the evidence upon which it was

based, or [whether] it represent[ed] a reasonably principled application of the

legislative criteria.” In re J.G., 495 S.W.3d at 370 (quoting Moon, 451 S.W.3d at

47).

B. Applicable Law

In order to transfer H.Y., the juvenile court had to make five findings pursuant

to section 54.02(j):

 He was 18 years of age or older;

 He committed the alleged robbery when he was 14 or older but younger than 17;

 He had not been adjudicated;

 By a preponderance of the evidence “after due diligence of the state it was not practicable to proceed in juvenile court before [his] 18th birthday . . . because . . . a previous transfer order was reversed by an appellate court,” and

22  There is probable cause to believe H.Y. committed the robbery.

See Tex. FAM. CODE § 54.02(j).

C. Analysis

The trial court made findings supporting the five required 54.02(j) factors.

H.Y. challenges the sufficiency of the evidence supporting two of the findings in the

juvenile court’s order: that there was probable cause he committed the offense and

that the State acted with due diligence.

1. Probable cause

With respect to probable cause, the trial court found:

[T]here is probable cause to believe that [H.Y.] committed the offense alleged.

H.Y. argues that insufficient evidence supports the juvenile court’s probable cause

finding because his first nine issues are meritorious and the evidence supporting the

finding was improperly admitted. However, we have concluded that H.Y.’s first

nine issues are not meritorious because the complained-of evidence was admitted

through the unobjected-to probation report. H.Y. does not otherwise argue that the

evidence is insufficient to support the trial court’s probable cause finding.

Among other things, the evidence at the transfer hearing showed that H.Y.

matched the description initially given by the complainant to police. There was also

evidence that H.Y. was driving the suspect vehicle and fled from police when

pursued. The evidence also showed that the complainant identified H.Y. as the

23 person who pointed a gun at him during the robbery and H.Y. was in possession of

a pistol magazine when he was apprehended.

Crediting evidence favorable to the probable cause finding and disregarding

contrary evidence unless a reasonable factfinder could not, there is more than a

scintilla of evidence supporting the juvenile court’s probable cause finding. See

Moon, 410 S.W.3d at 371; see also In re C.C., 930 S.W.2d 929, 933 (Tex. App.–

Austin 1996, no pet.) (“Probable cause exists where there are sufficient facts and

circumstances to warrant a prudent person to believe the suspect committed the

offense.”). Likewise, considering all of the evidence presented, the juvenile court’s

probable cause finding is not so against the great weight and preponderance of the

evidence as to be clearly wrong or unjust. See id. Accordingly, we hold that the

juvenile court’s probable cause finding is supported by legally and factually

sufficient evidence. See In re J.G., 495 S.W.3d at 374 (juvenile court’s probable

cause finding supported by sufficient evidence where evidence showed juvenile

walked up to complainant with another man who exhibited firearm and demanded

complainant’s property, robbers fled scene in car which they crashed, complainant’s

property was found in car, and complainant identified juvenile as one of robbers).

2. Due diligence before H.Y.’s eighteenth birthday

The State filed its original complaint against H.Y. in juvenile court in March

2013, when he was sixteen years and one month old. In May 2013, the State moved

24 to transfer H.Y. The trial court held a hearing on the transfer motion and signed the

first transfer order in July 2013. H.Y. was transferred to the criminal district court

and in June 2014, pleaded guilty in exchange for the State’s recommendation of 10

years’ imprisonment. The trial court accepted H.Y.’s plea and sentenced him to 10

years’ imprisonment. H.Y. filed his notice of appeal on June 25, 2014, when he was

seventeen years and four months old. On appeal, he challenged the transfer order,

and in September 2015, when H.Y. was eighteen years and seven months old, this

Court reversed the transfer order, vacated the criminal district court’s judgment, and

remanded the case to the juvenile court. In November 2015, the State moved to

transfer H.Y. a second time, mistakenly relying again on section 54.02(a), which

governed transfer of those under 18. On April 1, 2016, H.Y. responded to the

transfer motion and objected that the State was seeking transfer based on section

54.02(a), even though H.Y. was over 18. Twelve days later, the State amended is

motion to seek transfer under section 54.02(j), governing transfer of those over 18.

The transfer hearing was held a month later, in May 2016, and the juvenile court

signed the second transfer order in June 2016.

With respect to due diligence, the trial court found:

That by a preponderance of the evidence after due diligence of the State it was not practicable to proceed in juvenile court before the 18 th birthday of the said [H.Y.] because a previous transfer order was reversed by an appellate court.

25 This finding tracks section 54.02(j)(4)(B)(iii), which provides that the juvenile court

may transfer a person after his 18th birthday if, among other things:

(4) the juvenile court finds from a preponderance of the evidence that: ...

(B) after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person because:

...

(iii) a previous transfer order was reversed . . . .

TEX. FAM. CODE § 54.02(j)(4)(B)(iii). The juvenile court, in its findings of fact and

conclusions of law, also found that “[t]he State exercised due diligence throughout

the pendency of this case by seeking discretionary transfer in a timely fashion before

[H.Y.] turned 18, [and] proceeding to a hearing before [H.Y.] turned 18,” that “the

State could not proceed in juvenile court before the 18th birthday of [H.Y.] because

it could not have foreseen that the previous transfer order would be reversed by an

appellate court after [H.Y.] turned eighteen.],” and that “[t]he State exercised due

diligence . . . by seeking discretionary transfer in a timely fashion before the

respondent turned 18, proceeding to a hearing before the respondent turned 18, and

by filing the 3rd Amended request to seek waiver of jurisdiction as soon as practicable

after the First Court of Appeals reversed the original transfer order . . . .”

H.Y. argues that there is insufficient evidence to support the trial court’s

finding that the State demonstrated due diligence in seeking transfer before he turned

26 18. Specifically, H.Y. argues that the statute’s use of the term “the state” in section

54.02(4)(B) should be construed broadly to include not just the prosecution, but “the

juvenile appellate scheme,” which he argues caused unreasonable delay by requiring

him to wait until his criminal conviction became final before appealing his original

transfer order, which was reversed after H.Y. turned 18.

When construing a statute, we attempt to ascertain and effectuate the

Legislature’s intent. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.

2003). We start with the plain and ordinary meaning of the statute’s words. Id. As

relevant here, the statute provides that a juvenile court my transfer a person who is

18 or older if the juvenile court finds that “after due diligence of the state it was not

practicable to proceed in juvenile court before [his] 18th birthday . . . because . . . a

previous transfer order was reversed by an appellate court.” TEX. FAM. CODE

§ 54.02(j)(4)(B)(iii).

“The state” is not defined by section 54.02(j)(4)(B). However, the Court of

Criminal Appeals recently considered the meaning of the term “the state” in section

54.02(j)(4)(A), which provides an alternate basis for transfer under section

54.02(j)(4), if the juvenile court finds from 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 . . . .

Id. § 54.02(j)(4)(A). See Moore v. State, – S.W.3d –, No. PD-1634-14, 2016 WL

6091386, *_ (Tex. Crim. App. Oct. 19, 2016). In Moore, due to the heavy case load

27 of investigating detectives, a sexual assault complaint was not forwarded to the

district attorney until almost two years after it was first reported. Id. The defendant

was 16 at the time of the first report but had turned 18 by the time the case was

forwarded, although the detectives believed the defendant was still 17 due to an error

in the paperwork. Id. The State moved to transfer and argued that any delay

occasioned by the detectives’ caseload and their mistaken belief due to the

paperwork error should not be considered when determining whether it was

practicable for “the state” to proceed in juvenile court before the defendant’s

eighteenth birthday. Id. The juvenile court granted the transfer, but the court of

appeals concluded that “the state” included law enforcement and prosecution, and

that the reasons for delay presented by the State—the detectives’ heavy caseload and

the paperwork error—were not “reasons beyond the State’s control.” Id. The Court

of Criminal Appeals agreed that the plain meaning and common usage of “the state”

as used in section 54.02(j)(4)(A) referred to “law enforcement and the prosecution,”

and affirmed. Id. We assume that when the Legislature uses the same term more

than once in the same statute, it intends the same meaning, unless a different meaning

is apparent from the text. See Liverman v. State, 447 S.W.3d 889, 891 (Tex. App.—

Fort Worth 2014, no pet.) (every word in statute is presumed to have particular

meaning, and use of different words indicates different meaning intended).

Accordingly, the term “the state” in section 54.02(j)(4)(B)(iii) presumptively means

28 “law enforcement and prosecution,” and not the more expansive definition

advocated by H.Y.

Moreover, section 54.02(j)(4)(B)(iii) expressly recognizes that one reason a

person may not be transferred by the age of 18 is because an initial transfer order is

reversed. To broadly interpret the term “the state” as used in section

54.02(j)(4)(B)(iii) to include “juvenile appellate scheme,” therefore, would be

internally inconsistent. Section 54.02(j)(4)(B)(iii) could not both permit a certain

procedure—transferring someone who had reached the age of 18 after the reversal

of a previous transfer order—and define that procedure as contrary to it, i.e., not

demonstrating due diligence. Cf. In re J.G., 495 S.W.3d at 371 (where statute

permitted procedure, fact that State followed procedure could not be evidence of

lack of due diligence). Accordingly, we reject H.Y.’s proposed definition of “the

state” in section 54.02(j)(4)(B)(iii) as including the “juvenile appellate scheme.”

H.Y. suggests the two-month period between the filing of the complaint and

the first motion to transfer, and the four-month period that elapsed from the filing of

the complaint to the first transfer hearing, were too long and demonstrate a lack of

due diligence on the part of the State. He also argues that the fact that the juvenile

court’s first transfer order was a “boilerplate order” that was subject to reversal is

evidence of a lack of due diligence. And he argues that the State did not demonstrate

due diligence after remand because the State erroneously moved to transfer him

29 again based upon section 54.02(a), and did not amend the motion to seek transfer

under section 54.02(j) until April 2016, seven months after remand.

But this Court has previously affirmed a juvenile court’s finding of due

diligence where there was a two-month period between the filing of the original

complaint and a motion to transfer, and a fourth-month period from the filing of the

complaint to the first transfer hearing. See In re J.G., 495 S.W.3d at 371. And,

although the State did erroneously rely upon section 54.02(a) instead of 54.02(j) in

its motion to transfer filed after remand, the State corrected this error less than two

weeks after H.Y. pointed it out in his response, and the second transfer hearing was

held within a month of the filing of that amended motion, eight months after remand.

See id. (affirming due diligence finding where second transfer hearing was held eight

months after remand). The juvenile court found that “[t]he State exercised due

diligence throughout the pendency of this case by seeking discretionary transfer in a

timely fashion before [H.Y.] turned 18, [and] proceeding to a hearing before [H.Y.]

turned 18,” that “the State could not proceed in juvenile court before the 18th

birthday of [H.Y.] because it could not have foreseen that the previous transfer order

would be reversed by an appellate court after [H.Y.] turned eighteen.],” and that

“[t]he State exercised due diligence . . . by seeking discretionary transfer in a timely

fashion before the respondent turned 18, proceeding to a hearing before the

respondent turned 18, and by filing the 3rd Amended request to seek waiver of

30 jurisdiction as soon as practicable after the First Court of Appeals reversed the

original transfer order . . . .” Crediting evidence favorable to the findings regarding

due diligence and disregarding contrary evidence unless a reasonable factfinder

could not, there is more than a scintilla of evidence supporting those findings. See

Moon, 410 S.W.3d at 371. Likewise, considering all of the evidence presented, the

juvenile court’s due diligence finding is not so against the great weight and

preponderance of the evidence as to be clearly wrong or unjust. See id. Accordingly,

we hold that the juvenile court’s due diligence finding is supported by legally and

factually sufficient evidence. See In re J.G., 495 S.W.3d at 371–72 (sufficient

evidence supported due diligence finding where, in first transfer proceeding which

resulted in order that was reversed by appellate court after appellant turned 18, State

moved to transfer juvenile four months after filing complaint and juvenile was

transferred two months after filing of transfer motion); see also In re B.R.H., 426

S.W.3d 163, 168 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding) (some

evidence supported juvenile court’s finding of due diligence where State moved to

transfer juvenile five months after filing complaint and transfer hearing occurred two

months after filing of transfer motion).

The juvenile court’s challenged findings are supported by legally and

factually sufficient evidence. See Moon, 451 S.W.3d at 47. The juvenile court’s

order indicates that it transferred H.Y. because it found that the section 54.02(j)

31 criteria were met. See id. H.Y. does not advance any argument to support his claim

that the juvenile court abused its discretion in transferring him other than his

sufficiency challenges. In light of our review of the sufficiency of the evidence, we

hold that the juvenile court’s decision represents a reasonably principled application

of the section 54.02(j) factors and, therefore, was not an abuse of discretion. See id.;

see also In re J.G., 495 S.W.3d at 374 (holding juvenile court did not abuse

discretion in waiving jurisdiction and entering second transfer order where sufficient

evidence supported juvenile court’s challenged 52.04(j) findings).

We overrule H.Y.’s eleventh issue.

Conclusion

We affirm the juvenile court’s order.

Rebeca Huddle Justice

Panel consists of Justices Massengale, Brown, and Huddle.