ACCEPTED 05-19-00190-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 6/20/2019 8:40 AM LISA MATZ CLERK
IN THE COURT OF APPEALS FOR THE FIFTH APPELLATE DISTRICT OF TEXAS FILED IN IN THE MATTER OF * 5th COURT OF APPEALS * DALLAS, TEXAS Z.J. * NO. 05-19-00190-CV 6/20/2019 8:40:29 AM LISA MATZ * Clerk * JUVENILE *
APPEALED FROM CAUSE NUMBER JD-18-00958-X IN THE 305TH DISTRICT COURT OF DALLAS COUNTY, TEXAS; THE HONORABLE CHERYL LEE-SHANNON, JUDGE PRESIDING.
________________________________________
BRIEF OF APPELLANT
ORAL ARGUMENT NOT REQUESTED
FRANK ADLER ATTORNEY AT LAW SBN: 24056787 2701 Avenue J, Suite 100 PHONE: (682) 702-0506 E-MAIL: frankadlerlaw@gmail.com IDENTITY OF TRIAL COUNSEL AND APPELLATE COUNSEL
Honorable Stephanie L. Harmon Assistant District Attorney 2600 Lone Star Drive Dallas, Texas 75212 Trial Counsel for Petitioner
Melissa H. Read Assistant Public Defender SBN: 00787497 2600 Lone Star Drive, LB-2 Dallas, Texas 75212 Phone: (214) 698-4400 Trial Counsel for Respondent Juvenile
Honorable Faith Johnson Dallas County District Attorney Frank Crowley Courts Building 133 N. Riverfront Blvd., LB19 Dallas, Texas 75207 Appellate Counsel for Petitioner
Frank Adler Attorney at Law SBN: 24056787 2701 Avenue J, Suite 100 PHONE: (682) 702-0506 E-MAIL: frankadlerlaw@gmail.com Appellate Counsel for Respondent Juvenile TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................. ii
STATEMENT OF THE CASE ............................................................................................. 1
STATEMENT OF FACTS ................................................................................................ 1-3
ARGUMENT AND AUTHORITIES .................................................................................. 3-5
RELEVANT STATUTE .................................................................................................... 5-8
ARGUMENT .................................................................................................................... 8-9
CONCLUSION ................................................................................................................... 9
PRAYER ............................................................................................................................ 9
CERTIFICATE OF SERVICE ........................................................................................ 9-10
CERTIFICATE OF COMPLIANCE ................................................................................... 10
WAIVER OF JURISDICTION AND ORDER OF TRANSFER TO A CRIMINAL DISTRICT COURT .......................................................................................................... APPENDIX A TABLE OF AUTHORITIES
Moon v. The State of Texas, No. PD-1215-13, December, 2014……………….…………………………......….4,8
Hidalgo v. State, 983 S.W.2d 746 (Tex. Crim. App. 1999)……………………………………………..5
STATUTES
Texas Penal Code Section 54.02………………………………………………………..…4,5
ii STATEMENT OF THE CASE
NATURE OF THE APPEAL…………………………………CERTIFICATION--JUVENILE
TRIER OF FACT…..……………………...…….HONORABLE CHERYL LEE SHANNON
DISTRICT JUDGE………………………………HONORABLE CHERYL LEE SHANNON
THE DISTRICT COURT’S ORDER…………..…..…TRANSFER TO CRIMINAL COURT
STATEMENT OF FACTS
This appeal concerns the court’s decision to transfer Appellant Z.J. to Dallas
County Criminal District Court. (Clerk’s Record “CR” at 100-103). On January 31, 2019,
the trial court held the discretionary transfer hearing and at the conclusion of the hearing,
the trial court waived its jurisdiction and transferred Z.J. to the appropriate Criminal District
Court of Dallas County, Texas for criminal proceedings. Id.
On August 1, 2018, Chief Juvenile ADA Stephanie Harmon filed a Petition seeking
to transfer Z.J. to the adult criminal district court alleging that Z.J. violated a penal law of
the State of Texas of the grade of felony, namely, Aggravated Robbery [4 counts]. (CR at
12-13).
DALLAS DETECTIVE ADAM THAYER RELEVENT TESTIMONY
Detective Thayer testified he was the detective regarding the investigation of a
series of robberies involving several youths. (Reporter’s Record “RR” Volume “Vol” 2 at
10). Detective Thayer further testified that during the course of his investigation, he
arrived at the following conclusions:
1) That Z.J. was one of the juvenile suspects regarding the robberies that
occurred on July 22, 2018. (RR Vol 2 at 10).
1) Regarding count 2, the victim was standing outside of his residence
talking on the phone when he described what was a black Chevy Impala
1 pulled up to him. He described six black male suspects jumped out of
the car and punched him in the face…And then he described a black
male 15 to 17 year old, 5'10'', 140 pounds, which matched the
description of Z.J., and the complainant stated that suspect Z.J. kept
saying, "come on man, give me your wallet". And he was holding a black
semiautomatic pistol and then struck the complainant over the head with
the pistol two or three times. (RR Vol 2 at 12-13).
2) That the victim in Count 2 identified Z.J. as the individual with the pistol.
(RR Vol 2 at 14).
3) Regarding Count 3 and Count 4, the victims were out walking their dog
and this was captured on surveillance video. When the suspects arrived
in the stolen suspect vehicle, they parked in a parking spot and five
juvenile suspects got out of the vehicle, in which three of them robbed
the complainants at gunpoint. One of them had shotgun, one of them
had a pistol, and one of them was up there with the other two. They
kicked and pushed the complainants to the ground and threatened them
with the guns and stole one the complainant's cell phone. (RR Vol 2 at
18).
4) That In the video, you can see suspect D.T. with a shotgun and suspect
Z.J. with a pistol. (RR Vol 2 at 20).
5) That in the video, you can clearly see the weapons being exhibited or
used. (RR Vol 2 at 20).
2 6) That in the plea hearing for another suspect, the other suspect described
Z.J. to be the leader and to be in possession of the pistol during the
entire crime spree. (RR Vol 2 at 26).
DALLAS COUNTY JUVENILE PROBATION DEPARTMENT ASSISTANT CHIEF PSYCHOLOGIST DR. LEILANI HINTON RELEVANT TESTIMONY
Dr. Hinton testified she was not surprised to hear that Z.J. was in the leader in the
offense because he did not show any empathy or sympathy for the victims during her
interview with him. (RR Vol 2 at 38).
DALLAS COUNTY JUVENILE PROBATION OFFICERE KEDRICK SMITH RELEVANT TESTIMONY
Officer Smith testified Z.J. had quite a number of juvenile offenses prior to the
current offenses he was alleged to have committed. (RR Vol 2 at 44). Officer Smith further
added that Z.J. had a criminal trespass; theft of property; possession of marijuana;
unauthorized use of a motor vehicle; robbery and aggravated sexual assault. (RR Vol 2
at 44). Officer Smith continued that Z.J. had been placed outside of the home in a
residential treatment facility and also been on formal probation. (RR Vol 2 at 47).
Lastly, Officer Smith testified that the prospects of adequate protection of the public
and the likelihood of rehabilitation of Z.J. by the use and services and facilities that is
available to the court is remote and the probation department just did not have anything
that is available to him. (RR Vol 2 at 52).
ARGUMENT AND AUTHORITIES
The appellate courts should conduct appellate review of the juvenile court's
discretionary decision to waive jurisdiction in essentially the same way that the El Paso
3 Court of Appeals has said that the juvenile court's discretion in determining juvenile
dispositions should be scrutinized on appeal, to wit:
We apply a two-pronged analysis to determine an abuse of discretion: (1) did the
[juvenile] court have sufficient information upon which to exercise its discretion; and (2)
did the [juvenile] court err in its application of discretion? A traditional sufficiency of the
evidence review helps answer the first question, and we look to whether the [juvenile]
court acted without reference to any guiding rules or principles to answer the second.
Moon v. The State of Texas, No. PD-1215-13, December, 2014.
Similarly, we hold that, in evaluating a juvenile court's decision to waive its
jurisdiction, an appellate court should first review the juvenile court's specific findings of
fact regarding the Section 54.02(f) factors under “traditional sufficiency of the evidence
review.” But it should then review the juvenile court's ultimate waiver decision under an
abuse of discretion standard. That is to say, 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. Id.
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? And, of course, reviewing courts should bear in mind that not every
Section 54.02(f) factor must weigh in favor of transfer to justify the juvenile court's
discretionary decision to waive its jurisdiction. Id.
4 In Hidalgo v. State, 983 S.W.2d 746 (Tex. Crim. App. 1999), this court recognized
that “transfer to criminal district court for adult prosecution is ‘the single most serious act
the juvenile court can perform . . .because once waiver of jurisdiction occurs, the child
loses all protective and rehabilitative possibilities available.’” Id. at 755.
RELEVANT STATUTE
Texas Penal Code Section 54.02 states: WAIVER OF JURISDICTION AND
DISCRETIONARY TRANSFER TO CRIMINAL COURT
(a) 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: (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.
(b) The petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of
this code must be satisfied, and the summons must state that the hearing is for the
purpose of considering discretionary transfer to criminal court.
5 (c) The juvenile court shall conduct a hearing without a jury to consider transfer of the
child for criminal proceedings.
(d) 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.
(e) 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.
The court may order counsel not to reveal items to the child or the child's parent, guardian,
or guardian ad litem if such disclosure would materially harm the treatment and
rehabilitation of the child or would substantially decrease the likelihood of receiving
information from the same or similar sources in the future.
(f) In making the determination required by Subsection (a) of this section, the court shall
consider, among other matters:
(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.
6 (g) If the petition alleges multiple offenses that constitute more than one criminal
transaction, the juvenile court shall either retain or transfer all offenses relating to a single
transaction. Except as provided by Subsection (g-1), a child is not subject to criminal
prosecution at any time for any offense arising out of a criminal transaction for which the
juvenile court retains jurisdiction.
(g-1) A child may be subject to criminal prosecution for an offense committed
under Chapter 19 or Section 49.08, Penal Code, if: (1) the offense arises out of a criminal
transaction for which the juvenile court retained jurisdiction over other offenses relating
to the criminal transaction; and (2) on or before the date the juvenile court retained
jurisdiction, one or more of the elements of the offense under Chapter 19 or Section 49.08,
Penal Code, had not occurred.
(h) If the juvenile court waives jurisdiction, it shall 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 results of the diagnostic study of the person ordered under Subsection (d),
including psychological information, to be transferred to the appropriate criminal
prosecutor.
On transfer of the person for criminal proceedings, the person shall be dealt with
as an adult and in accordance with the Code of Criminal Procedure, except that if
detention in a certified juvenile detention facility is authorized under Section 152.0015,
Human Resources Code, the juvenile court may order the person to be detained in the
facility pending trial or until the criminal court enters an order under Article 4.19, Code of
Criminal Procedure. A transfer of custody made under this subsection is an arrest. (h-1)
7 If the juvenile court orders a person detained in a certified juvenile detention facility under
Subsection (h), the juvenile court shall set or deny bond for the person as required by the
Code of Criminal Procedure and other law applicable to the pretrial detention of adults
accused of criminal offenses. (i) A waiver under this section is a waiver of jurisdiction
over the child and the criminal court may not remand the child to the jurisdiction of the
juvenile court.
ARGUMENT
1) The trial abused its discretion because it acted without reference to any
guiding rules or principles.
The trial court abused its discretion by waiving its original jurisdiction over Z.J. and
transferring the case to the adult criminal district court.
Here, Z.J. concedes that the trial court made the proper findings in the order as
required in the Moon holding and the Texas Family Code. Furthermore, Z.J. does not
dispute the State met its burden of proof that probable cause existed to issue an arrest
affidavit for Z.J. The Texas Family Code then mandates that the trial court balance the
probable cause findings with the other factors listed in the Family Code to determine
whether the trial court should waive its original jurisdiction.
There was not any testimony about the services available to Z.J. regarding a
commitment to the Texas Juvenile Justice Department (TJJD). Absent any testimony
regarding the juvenile prison and the services available to the court, it was not possible
for the court to conclude no services were available for Z.J.
Accordingly, the trial court’s decision to transfer Z.J. to the adult criminal court was
essentially arbitrary, given the evidence upon which it was based. The overwhelming
8 weight of the evidence supported a finding of the juvenile court retaining jurisdiction and
denying the State’s Petition.
CONCLUSION
The trial court abused its discretion in waiving its juvenile jurisdiction and
transferring Z.J. to the adult criminal court.
PRAYER
Appellant suffered fundamental legal harm. Therefore, the Appellant prays that
the case be reversed or in the alternative that the Appellant receive a new trial.
Respectfully Submitted,
/s/ ______________________ Frank Adler Appellant Attorney SBN: 24056787 2501 Avenue J. Suite 100 Arlington, Texas 76006 Tel: (682) 702-0506 Fax: (888) 605-7225
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing Brief for Appellant
has been forwarded the 19 of June 2019, to the following attorneys:
9 Honorable Faith Johnson Dallas County District Attorney Frank Crowley Courts Building 133 N. Riverfront Blvd., LB19 Dallas, Texas 75207 Appellate Counsel for Petitioner
/s/ ____________________ Frank Adler
CERTIFICATE OF COMPLIANCE
The word count for the portions of the document covered by TEX. R. APP. P. 9.4(e)(1) is
2,346.
/s/ ____________________ Frank Adler Attorney at Law
10 Appendix A
NO. JD-18-958-X
IN THE MATTER OF IN THE 305m DISTRICT
COURT OF Z J AKA Z J DALLAS COUNTY, TEXAS WAIVER OF JURISDICTION AND ORDER OF TRANSFER TO A CRIMINAL DISTRICT COURT ON THIS THE 315T DAY OF JANUARY, 2019, personally appeared the
Respondent, Z J AKA Z J , who was duly and properly served by a
suitable person under the direction of the Court; Respondent’s attorney, Melissa Read;
M J the father of the Respondent; and Stephanie Harmon, Assistant District
Attorney, for a hearing on the State’s Motion for Discretionary Transfer to a Criminal
Court of Respondent, Z J AKA Z J The Court finds the Respondent
t0 be a male child, born on the , and being sixteen (16) years of
age at the time of the acts upon Which the Motion founded and alleged is t0 have
occurred. The Court finds no adjudication hearing has been conducted concerning such
acts. At the present time the Respondent is sixteen (16) years old. The parent 0f the
Respondent is M J
The Court finds that said offenses are felonies under the penal law 0f the State of
Texas. The Court finds that the alleged offenses were against a person and property; and
the Court finds that there is probable cause t0 believe that the Respondent committed
each 0f the offenses alleged in the State’s Petition for Discretionary Transfer.
The Court finds the Respondent is 0f sufficient sophistication and the
Respondent’s level 0f maturity is sufficient to be tried as an adult and to aid an attorney
in his defense. After considering all the testimony, diagnostic study, social evaluation,
J D — 1B - 00958 JDWAVR WAIVER 2024748
| ||||N||||l|l|||||l||l|l|||I‘I
,, Page 100 and full investigation, the Court finds it is contrary t0 the best interest of the public to
retain jurisdiction.
The Court finds for the welfare of the community, the seriousness 0f the alleged
offenses and the background 0f the Respondent, that criminal proceedings are required.
The reasons for this disposition are that: The Respondent is charged with
Violating penal laws of the grade of felony; the Respondent was fourteen (14) years old or
older at the time he is alleged t0 have committed the offenses; no adjudication hearing
has been conducted concerning these alleged offenses; the Respondent’s conduct was
willful and Violent; a deadly weapon, to Wit: a firearm, was used during the course of the
offenses; personal injury resulted to the Victims, Ga Sc and Ca Ku
AKA Ca S the offenses were so serious that transfer to a District Court with
criminal jurisdiction must be granted; the Respondent has not accepted 0r responded to
supervision; the Respondent has a pattern of refusing to remain at home; the Respondent
refuses to remain away from associates in the community Who habitually Violate the law;
the sophistication 0f the child is sufficient for his age; and his level 0f maturity is
sufficient; the background of the Respondent indicates that the welfare of the community
requires criminal prosecution; the previous history 0f the Respondent indicates a present
need for placement of the child in a controlled, structured facility; the public needs
protection from the Respondent; the prospects 0f adequate protection of the public and
the likelihood 0f rehabilitation of the child by use 0f procedures, services and facilities
currently available t0 the Juvenile Court is remote; and it is desirable that all parties to the
offenses be tried in one court since the accomplice is an adult.
Page 101 The specific factual findings made t0 support the transfer decision are that:
the probable cause is supported by the video 0f the Sc robberies and the property
and food taken from Victims, Ma H AKA Ma R and Ge
Ro -M were recovered at Respondent’s arrest; the Respondent had a prior
adjudication of aggravated assault; the Respondent personally threatened the Victims and
is the probable leader in the commission of the offenses; the Respondent personally
displayed a firearm in all offenses charged and demanded property; the S Victims
received minor injuries; Respondent unsuccessfully completed juvenile probation and flkw‘1? assaultive conduct while in juvenile placement and in detention; Respondent was on
runaway status while 0n probation; the accomplices have criminal backgrounds;
Respondent has previous adjudications for two (2) felony offenses; a deadly weapon was
used in prior felony aggravated assault; prior placement by the Juvenile Department in an
attempt t0 rehabilitate; at legst one! ccomplice to be tried in adult (wk Ma a ,r
were plannec%n rapid succession and several Victims were involved. court; and the offenses
Cf 1%J THEREFORE, by reasons 0f the foregoing, I, as the Judge 0f the 305th Judicial
District Court 0f Dallas County, Texas, a Juvenile Court, hereby waive jurisdiction 0f this
cause and transfer said Respondent, Z J AKA Z J to the appropriate
Criminal District Court 0r District Court of Dallas County, Texas, for proper criminal
proceedings and d0 hereby certify said action.
Included herein and made a part of the waiver 0f jurisdiction, transfer and
certification is this written Order, the same being the findings of the Judge of the 305th
Judicial District Court 0f Dallas County, Texas, and said certification, transfer, and
waiver is accompanied by complaints against the Respondent accusing him 0f three (3)
Page 102 felony offenses, to Wit AGGRA VA TED ROBBERY, occurring on 0r about the 22": day of
J_ull, M, in Dallas County, Texas, said complainant being Ma He AKA Ma Ro AGGRA VA TED ROBBERY, occurring 0n 0r about the ;2_"d day of My, M, in Dallas County, Texas, said complainant being C Ku AKA C S ; AGGRA VA TED ROBBERY, occurring on or about the 1211 day of M, m, in Dallas County, Texas, said complainant being Ga S ; and all criminal
offenses occurring in said criminal episodes of Which said offenses the said Court has
jurisdiction. Further, the Respondent has been advised of his right t0 appeal pursuant t0
the requirements of the Texas Family Code.
IT IS FURTHER ORDERED AND DECREED by the said 305th Judicial District
Court 0f Dallas County, Texas, that the clerk of said Court transmit forthwith t0 the
proper Criminal District Court or District Court of‘ Dallas County, Texas, this written
Order and findings of the said 305th Judicial District Court of Dallas County, Texas, and
said complaints attached hereto.
SIGNED ON THIS THE Z {DAY OF FEBRUARY, 2012.
JUDGEédSTH DISTRICT COURT 0F DALLAS COUNTY, TEXAS
Page 103