in the Matter of J.W.

Court of Appeals of Texas·Decided October 25, 2012·No. 01-11-01067-CV·Published

Opinion

Opinion issued October 25, 2012.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-11-01067-CV ——————————— IN THE MATTER OF J.W., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2009-05444J

MEMORANDUM OPINION

This is an appeal from an adjudication that appellant J.W. engaged in

delinquent conduct by participating in an aggravated robbery when he was fifteen

years old. J.W. raises two points on appeal. First, J.W. contends that the trial court lacked jurisdiction to adjudicate him delinquent because it has jurisdiction only

over persons between the ages of ten and seventeen, and J.W.’s mental age at the

time of the offense was less than ten years. Second, he maintains that because the

Texas Legislature has determined that a child may not be found criminally

responsible before the age of ten years, a child with a mental age less than ten

cannot be held criminally responsible as a matter of law. We affirm.

Background

On June 18, 2009, three men robbed Desiree Hernandez, the only teller

working in the lobby of the United Energy Credit Union, at gunpoint. Two of the

men, one of whom Hernandez later identified as J.W., jumped over the counter,

pointed their guns at her, and demanded that she give them all the money. Afraid

that they would kill her, Hernandez handed the men approximately $12,000. The

men told Hernandez not to look at them and ordered her to get on the ground.

After the men left, Hernandez pushed the panic button.

Members of the Houston Police Department were called to the scene and,

after viewing the surveillance video of the robbery, discovered that one of the men

touched the plastic wall at the teller station. Police officers were able to lift a

fingerprint from the teller station wall and that fingerprint was identified as

belonging to J.W., who was fifteen at the time of the robbery. The State charged

J.W. by determinate petition, in juvenile court, with aggravated robbery.

2 Before the bench trial began, the trial court conducted a hearing on J.W.’s

motion to suppress his recorded statement and his motion to dismiss for lack of

intent or responsibility, based on his mental age, which J.W. contends is less than

ten. At the hearing, J.W. also argued, because J.W. had a mental age of less than

ten, that the trial court lacked jurisdiction to hear the matter.

Dr. Diane Wood, the chief psychologist for the Mental Health Mental

Retardation Authority of Harris County, Child Adolescence Forensic Division,

testified at the hearing that she supervised the testing conducted on J.W. in July

2009, after the robbery occurred. She explained that several tests were performed

on J.W. in 2009, including the Wechsler Intelligence Scale for Children, the Wide

Range Achievement Test, the Street Skill Survival Questionnaire, and the Bender-

Gestalt test. She explained that there are three requirements for a child to be

diagnosed with mental retardation: (1) the child has to be under the age of

eighteen; (2) the child has to score under or around seventy on an individually

administered IQ test; and (3) there must be a concurrent deficit in adaptive

functioning, which can be judged by whether the child can adapt to change or tell

time. Dr. Wood testified that J.W. produced a full scale IQ of 40 on the Wechsler

Intelligence Test, which shows that he functions between a kindergarten and first

grade level. However, she noted that his achievement scores in 2008 placed him at

a fifth grade reading level and a tenth grade spelling level. She testified that the

3 Street Skill Survival Questionnaire is a test of adaptive functioning and that J.W.

has a survival skills quotient of 10, which is described as profoundly mentally

retarded. Finally, she testified that he scored at the level of a seven-and-a-half year

old on the Bender-Gestalt Test, which is a visual spatial motor skills test.

Dr. Wood testified that, according to the testing, J.W. appeared to be

functioning at a moderate range of mental retardation and that he seemed to be

functionally illiterate. She further testified that he did not have adequate skills to

function independently in daily living. However, Dr. Wood explained that,

because there were so many discrepancies in the test scores from his first testing in

2008 and the testing that was done later, she was comfortable concluding only that

J.W. functions at the mild mental retardation range, which she said, if valid, would

mean he was functioning at the level of a ten or eleven year old. Some of the

abilities that she observed in the office during the evaluation were inconsistent

with J.W.’s adaptive functioning score of 10. For example, she explained that a

child whose adaptive functioning score was a 10 would need help with basic

functions, like toileting, but J.W. does not. She testified that when J.W. was first

tested in 2008, he produced an IQ estimate of 81 on the Test of Nonverbal

Intelligence-3, with average reading and spelling scores. When he was tested

again in 2009, he received an IQ estimate of 63 on the Test of Nonverbal

Intelligence-3. Finally, when he was administered the full-scale Wechsler IQ test,

4 his IQ had dropped to 40. Addressing these contradictions in the testing, she made

the following notations in her evaluation:

There is a difference in the IQ and achievement scores between his first [testing in 2008] and his later intellectual/achievement testing. There is a difference in his adaptive living scores on the [Street Survival Skills Questionnaire] and his observed behavior. There is a difference in what school information there is, specifically a learning disorder, versus the test scores obtained here. There is also the question of the possibility of malingering . . . . The diagnosis of Moderate Mental Retardation is being given provisionally due to the conflict between the original and most recent IQ scores. It is felt that [J.W.] should be observed for a period of time to determine at what level he truly functions at intellectually and what signs and symptoms are observed (vs. reported and/or endorsed).

Dr. Linda Wittig, a child and forensic psychiatrist, also testified at the

hearing that she evaluated J.W. on August 1, 2011 and March 11, 2011 based on

the testing conducted by Dr. Wood. She testified that J.W. was having issues with

attention deficit and adjustment disorder and that he functioned in the range of

mental retardation based on the testing. She testified that one test conducted by

Dr. Wood showed J.W. was functioning in the first grade or kindergarten range.

She opined that J.W.’s mental retardation would have been present all of his life.

Dr. Wittig also testified that in her professional opinion, at the time of the

robbery and despite his mental retardation, J.W. had substantial capacity to

appreciate the wrongfulness of his conduct and to conform his conduct to the

requirements of the law. She explained that she felt J.W. understood that robbing a

bank was against the law and that he had the ability to conform his conduct to the 5 law in a very basic manner, despite his mental retardation. She opined that J.W.

was functioning in the mild range of mental retardation. She explained that there

were several discrepancies in J.W.’s IQ function and testing, which is why she

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