in the Matter of R.D G., Jr.

• Court: Court of Appeals of Texas
• Decided: January 26, 2022
• Docket: 07-21-00010-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-21-00010-CV

IN THE MATTER OF R.D.G., JR., APPELLANT

On Appeal from the County Court at Law No. 1 Hays County, Texas1 Trial Court No. 5440, Honorable David Junkin, Presiding

January 26, 2022 MEMORANDUM OPINION Before PIRTLE and PARKER and DOSS, JJ.

Appellant, R.D.G., Jr.,2 appeals the juvenile court’s waiver of jurisdiction and

transfer to a criminal district court. See TEX. FAM. CODE ANN. § 54.02. R.D.G., Jr., asserts

that the trial court erred in admitting out-of-court statements at the transfer hearing. We

affirm.

1 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should a conflict exist between precedent of the Third Court of Appeals and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3. 2 We use aliases to protect the identity of the minors involved. See TEX. R. APP. P. 9.8(c). Background

R.D.G., Jr., was charged with five counts of aggravated sexual assault of a child,

all first-degree felonies. The offenses were alleged to have occurred when R.D.G., Jr.,

was between fourteen and seventeen years of age. He was charged in 2020, when he

was twenty-two years of age. The State filed a petition seeking the juvenile court’s waiver

of jurisdiction and discretionary transfer to criminal court under Section 54.02(j) of the

Texas Family Code. See TEX. FAM. CODE ANN. § 54.02(j); In re A.M., 577 S.W.3d 653,

657-58 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (under certain circumstances,

juvenile court may waive exclusive original jurisdiction and transfer proceeding).

San Marcos Police Department Detective Richard Prado was the sole witness at

the hearing on the State’s petition. He testified that he began an investigation after the

father of the complainants, “Father,” reported to him that his ex-wife, “Mother,” told him

that their daughters had made outcry statements to her. Both daughters alleged that they

had been sexually assaulted by their stepbrother, R.D.G., Jr., when they were younger.

Father and Mother then prepared written statements, which they brought to Detective

Prado the next day. The police conducted forensic interviews of the complainants that

afternoon. Detective Prado watched the interviews from an observation room. During

their separate interviews, each complainant described multiple incidents of sexual

offenses by R.D.G., Jr. After completing his investigation, Detective Prado obtained a

directive to apprehend R.D.G., Jr., which he testified is the equivalent of an adult arrest

warrant.

2 Following the hearing, the juvenile court waived its jurisdiction and transferred

R.D.G., Jr., to the criminal district court for trial as an adult.

Analysis

In this appeal, R.D.G., Jr., asserts that the trial court erred by allowing the State to

introduce hearsay statements at the hearing. His issue has two parts. In the first part,

he contends that the trial court erred by allowing the statements made to Father to

establish probable cause, when the statements did not qualify as excited utterances. In

the second, he claims that the trial court erred by allowing testimony from Detective

Prado. R.D.G., Jr., argues that these errors resulted in the trial court’s improper waiver

of jurisdiction. We consider his two complaints in turn.

R.D.G., Jr., first claims that the trial court erred by allowing Detective Prado to

testify regarding statements made to him by Father, claiming that Father’s statements

were not admissible as excited utterances. See TEX. R. EVID. 803(2) (excited utterance

exception to the rule against hearsay). We note that while R.D.G., Jr., casts this complaint

as a dispute over the excited utterance exception, the record reflects that the trial court

sustained R.D.G., Jr.’s, objection that the excited utterance exception did not apply to

Father’s statements. The trial court allowed Detective Prado to testify to the statements,

but the testimony was admitted only as part of the court’s probable-cause determination.

We therefore consider Father’s statements along with other statements complained of by

R.D.G., Jr., on appeal.

3 The balance of R.D.G., Jr.’s argument concerns the admission of hearsay

evidence from Detective Prado.3 The State responds that such evidence is admissible at

discretionary transfer hearings.

A transfer hearing is not a trial on the merits at which the guilt of the accused is to

be decided; rather, the issue is whether probable cause exists to believe the juvenile

committed the charged offense. See TEX. FAM. CODE ANN. § 54.02(a)(3). The juvenile

court makes a probable cause determination in a non-adversarial preliminary hearing.

Id.; In re D.W.L., 828 S.W.2d 520, 524 (Tex. App.—Houston [14th Dist.] 1992, no writ).

Numerous Texas courts have held that the juvenile court may use hearsay as well as

written and oral testimony in determining probable cause. In re D.W.L., 828 S.W.2d at

524; Alford v. State, 806 S.W.2d 581, 582 (Tex. App.—Dallas 1991), aff’d on other

grounds, 866 S.W.2d 619 (Tex. Crim. App. 1993) (en banc); In re K.B.H., 913 S.W.2d

684, 687 (Tex. App.—Texarkana 1995, no pet.); In re G.B.B., 638 S.W.2d 162, 164 (Tex.

App.—Houston [1st Dist.] 1982, no writ); In re P.A.C., 562 S.W.2d 913, 915-16 (Tex. Civ.

App.—Amarillo 1978, no writ); see also Milligan v. State, No. 03-04-00531-CR, 2006 Tex.

App. LEXIS 1356, at *11 (Tex. App.—Austin Feb. 16, 2006, pet. ref’d) (mem. op.)

(recognizing that it “has been held that neither the Sixth Amendment nor the hearsay rule

applies to a juvenile certification hearing” but not addressing issue). The Texas Family

Code specifically authorizes the juvenile court to “consider written reports from probation

officers, professional court employees, guardians ad litem [. . .], or professional

consultants in addition to the testimony of witnesses” at transfer hearings. TEX. FAM.

3In his briefing, R.D.G., Jr., does not direct us to specific statements in the record, but rather complains generally about “the hearsay testimony of Detective Prado.”

4 CODE ANN. § 54.02(e). Additionally, juvenile courts may rely on the testimony of law

enforcement officers to support a probable-cause determination, including testimony

regarding statements a complainant made to the officers. See, e.g., In re D.I.R., No. 08-

20-00178-CV, 2021 Tex. App. LEXIS 8249, at *15-16 (Tex. App.—El Paso Oct. 8, 2021,

no pet.); Price v. State, No. 05-01-00854-CR, 2002 Tex. App. LEXIS 3913, at *8 (Tex.

App.—Dallas May 20, 2002, no pet.); In re B.N.E., 927 S.W.2d 271, 274-75 (Tex. App.—

Houston [1st Dist.] 1996, no writ); In re K.R.B., No. 04-95-00856-CV, 1996 Tex. App.

LEXIS 3596, at *6-7 (Tex. App.—San Antonio Aug. 14, 1996, no writ); In re R.G., Jr., 865

S.W.2d 504, 508-09 (Tex. App.—Corpus Christi 1993, no writ).

Here, Detective Prado’s testimony about his investigation, including references to

out-of-court statements, was relevant to the question of whether there was probable

cause to believe R.D.G., Jr., committed the charged offenses. The trial court indicated

that it was admitting the testimony for the sole purpose of determining probable cause.

We find no error in the trial court’s decision.

Conclusion

Accordingly, we affirm the juvenile court’s order waiving jurisdiction and

transferring this cause to criminal court.

Judy C. Parker Justice