in the Matter of Z.J., a Juvenile

Opinion

AFFIRMED and Opinion Filed August 1, 2019

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00190-CV

IN THE MATTER OF Z.J., A JUVENILE

On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JD-18-00958-X

MEMORANDUM OPINION Before Justices Bridges, Brown, and Nowell Opinion by Justice Bridges The juvenile court certified Z.J., a sixteen year old, to be tried as an adult and transferred

criminal proceedings to a criminal district court. In a single issue, Z.J. argues there was no

testimony at the underlying hearing concerning the services available to Z.J. regarding a

commitment to the Texas Juvenile Justice Department, and it was therefore “not possible for the

court to conclude no services were available.” We affirm.

In August 2018, the State filed a petition for discretionary transfer asking the juvenile court

to waive its jurisdiction and transfer Z.J.’s case to adult criminal court. See TEX. FAM. CODE ANN.

§ 54.02. As required by family code section 54.02(d), the trial court ordered a complete diagnostic

study, social evaluation, and full investigation of Z.J., his circumstances, and the circumstances of

the alleged offenses. After the evaluations were completed, the juvenile court conducted a hearing regarding the

State’s motion to transfer. Dallas police detective Adam Thayer testified he investigated “a series

of robberies involving several youth” that occurred on July 22, 2018. Z.J. was one of the juvenile

suspects, along with five other juveniles. The first robbery occurred on Pentagon Parkway in

Dallas. The second robbery victim was Mauricio Hernandez. Hernandez was outside his residence

when a black Chevy Impala pulled up, and six male suspects “jumped out of the car and punched

him in the face.” One of the assailants matched Z.J.’s description. Z.J. kept saying, “come on

man, give me your wallet.” Z.J. was “holding a black semiautomatic pistol and then struck the

complainant Hernandez over the head with the pistol two or three times.” Minutes after the

Hernandez robbery, Z.J. and the other suspects arrived in the Impala and robbed Garrett and

Caroline Scharton at gunpoint and stole Caroline’s cell phone. Surveillance video of the robbery

showed Z.J. using a pistol to commit the robbery. After the Scharton robbery, Z.J. and the other

juveniles proceeded to a location on Crow Creek Drive where they committed “the same type of

robbery” against Gerardo Rodriguez-Mata. The juveniles took cash that was in Rodriguez-Mata’s

hand and $80 worth of pizza that he was delivering. After D.T., the juvenile driving the Impala,

wrecked the car and attempted to run away, Mesquite police found the Impala, and all the juveniles

involved in the robberies were arrested and charged. One of the other juveniles, J.C., later testified

at his plea hearing that Z.J. was “the leader” and was “in possession of the pistol during the entire

crime spree.” Another juvenile, T.J., also described Z.J. as the leader and said Z.J. had a pistol

during all the offenses. Thayer testified there was probable cause to believe Z.J. committed the

offenses that Thayer testified about; criminal proceedings were required in Z.J.’s case for the

welfare of the community; Z.J.’s conduct was willful and violent, and he used a deadly weapon

during the course of the offenses; personal injury resulted from the offenses to Hernandez and the

Schartons; and the public needed protection from Z.J.

–2– Dr. Leilani Hinton, assistant chief psychologist for the Dallas County Juvenile Department,

testified she evaluated Z.J. and determined he was fit to proceed. Hinton testified that, in terms of

criminal sophistication, Z.J. is “at least as sophisticated as peers his age.” However, on

“intellectual tests developmentally,” he was lower than peers his age, and intellectually he fell in

the “extremely low range.” Hinton testified Z.J. had “very good knowledge of the legal system,”

he had “been through the system several times before,” and he had “good knowledge of possible

legal defenses.” Hinton testified she was not surprised to hear Z.J. was the leader in the offense,

and he did not show any empathy or sympathy for the victims. When questioned about the

underlying offenses, Z.J. said he did not believe they were very serious because he did not kill or

shoot anyone.

Kedrick Smith, a probation officer for the Dallas County Juvenile Department, testified

concerning the social evaluation and investigative report he made in this case. According to

Smith’s report, Z.J. has been referred to the juvenile department eleven times. Z.J.’s first referral

was on October 27, 2015 for criminal trespass, and he received deferred prosecution. Z.J. received

two additional referrals for criminal trespass on October 29, 2015 and March 11, 2016, and he

completed his deferred prosecution on August 9, 2016. On October 27, 2016, Z.J. received his

fourth referral for theft of property. Z.J. was released but continued to reoffend. Between

November 1, 2016 and February 17, 2017, Z.J. received five additional referrals for offenses

including theft of property, possession of marijuana, aggravated robbery, aggravated sexual

assault, and unauthorized use of a motor vehicle. On July 17, 2017, Z.J. was adjudicated for

aggravated assault with a deadly weapon and theft of property and was ordered to placement at the

Dallas County STARS (sex offender residential treatment center). Z.J. was admitted to the STARS

program on July 21, 2017 and was successfully discharged from the program on May 24, 2018.

–3– Upon Z.J.’s release, he was placed on Intensive Supervision Probation in the custody of

his mother. However, Z.J. continued to fail to comply with the terms and conditions of his

probation, and he was referred to the home detention program to help monitor his whereabouts

and prevent him from further engaging in delinquent conduct. On June 1, 2018, Z.J.’s mother

notified his probation officer that a runaway report was made because Z.J. had left home the

previous night and had not returned. A judge signed a bench warrant on June 5, 2018, and Z.J.

was arrested and released to the Community Alternative Initiative program where he completed

the program but remained when his mother refused to sign an agreed order allowing Z.J. to reside

with his aunt. On July 5, 2018, Z.J. was detained at the juvenile detention center for a violation of

conditions of release. On July 10, 2018, Z.J. was released into his father’s custody, but his father

reported Z.J. left home without permission, violating the terms of his probation, on July 12, 2018.

On July 20, 2018, a judge signed another bench warrant for Z.J., and Z.J. was detained for the

underlying offenses in this case on July 22, 2018.

Smith testified that, while Z.J. was in detention, he did well for a time, was on “a Level 4,”

and was placed in the Honors Program for “maybe a month or two.” Z.J.’s behavior “declined,”

and he was involved in a fight, aggressive toward staff, and had “lots of peer conflict.” Smith

testified Z.J. has a history of smoking marijuana daily and claims to be in a gang. Smith confirmed

that detention was a “highly structured environment” where Z.J.’s level was a 2.3 at the time Smith

testified. Smith testified it was “correct” to say Z.J. “can’t behave properly here in a high level of

structure for juveniles” and “even the possibility of” the Texas Juvenile Justice Department was

“not going to be enough” for Z.J. Smith also confirmed that “the prospects of adequate protection

of the public and the likelihood of rehabilitation” by the use of procedures and services and

facilities available to the juvenile court was “remote.” Smith testified that, for the welfare of the

–4– community and the seriousness of the offenses and the background of Z.J., criminal proceedings

were required, and Smith recommended Z.J. be transferred to criminal district court.

At the conclusion of the hearing, the juvenile court made oral findings on the record. On

February 4, 2019, the court signed its waiver of jurisdiction and order of transfer to a criminal

district court. The order stated the court considered “all the testimony, diagnostic study, social

evaluation, and full investigation” and found “it is contrary to the best interest of the public to

retain jurisdiction.” This interlocutory appeal followed.

To waive its jurisdiction and transfer Z.J. to adult criminal court, the juvenile court had to

find Z.J. was alleged to have committed a felony, he was fourteen years old or older at the time he

committed the alleged offense, after a full investigation and a hearing there was probable cause to

believe Z.J. committed the alleged offense, and the welfare of the community requires criminal

proceedings because of the alleged offense’s seriousness or Z.J.’s background. See TEX. FAM.

CODE ANN. § 54.02(a)(1)–(3).

In making the determination required in subsection (a), the juvenile court had to 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) Z.J.’s sophistication and

maturity; (3) Z.J.’s record and previous history; and (4) the prospects of adequate protection of the

public and the likelihood of Z.J.’s rehabilitation by use of procedures, services, and facilities

currently available to the juvenile court. See id. § 54.02(f). These are nonexclusive factors that

serve to facilitate the juvenile court’s balancing of the potential danger to the public posed by the

particular juvenile offender with his amenability to treatment. Moon v. State, 451 S.W.3d 28, 38

(Tex. Crim. App. 2014) (citing Hidalgo v. State, 983 S.W.2d 746, 754 (Tex. Crim. App. 1999)).

Family code section 54.02(h) requires that, if the juvenile court waives jurisdiction, “it shall state

–5– specifically in the order its reasons for waiver and certify its action, including the written order

and findings of the court.” TEX. FAM. CODE ANN. § 54.02(h); Moon, 451 S.W.3d at 38.

With regard to our review of that order, the court of criminal appeals has instructed us as

follows:

[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.” 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. 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.

Moon, 451 S.W.3d at 47. Further, a reviewing court should measure sufficiency of the evidence

to support the juvenile court’s stated reasons for transfer by considering the sufficiency of the

evidence to support the facts as they are expressly found by the juvenile court in its certified order.

In re G.B., 524 S.W.3d 906, 914–15 (Tex. App.—Fort Worth 2017, no pet.). The appellate court

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. Id. Thus, in conducting a sufficiency review of the evidence to establish the facts

relevant to 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 court’s transfer order under Section 54.02(h). Id.

–6– However, while the order must show the juvenile court considered the four factors in

section 54.02(h), the court “need make no particular findings of fact with respect to those factors.”

Moon, 451 S.W.3d at 41–42. Further, the court may order a transfer on the strength of any

combination of the criteria listed in section 54.02(f). Hidalgo, 983 S.W.2d at 754 n.16.

Z.J. argues there was not any testimony about the services available to Z.J. regarding a

commitment to the Texas Juvenile Justice Department. Absent any testimony regarding the

juvenile prison and the services available to the court, Z.J. argues it was not possible for the court

to conclude no services were available for Z.J. Z.J. also asserts generally that the “overwhelming

weight of the evidence supported a finding of the juvenile court retaining jurisdiction and denying

the State’s petition.”

Contrary to Z.J.’s assertions, the juvenile court heard Smith’s testimony that it was

“correct” to say Z.J. “can’t behave properly here in a high level of structure for juveniles” and

“even the possibility of” the Texas Juvenile Justice Department was “not going to be enough” for

Z.J. Smith also confirmed that “the prospects of adequate protection of the public and the

likelihood of rehabilitation” by the use of procedures and services and facilities available to the

juvenile court was “remote.” In the juvenile court’s order of transfer, the court specifically stated

among its reasons for its disposition that “the prospects of adequate protection of the public and

the likelihood of rehabilitation of the child by use of procedures, services and facilities currently

available to the Juvenile Court is remote.”

The record shows further that Z.J. had been referred to the juvenile department eleven times

between the ages of thirteen and sixteen. One of the offenses, Smith testified, was the aggravated

sexual assault of “an adult grown woman.” During the sexual assault, Z.J. had a deadly weapon

and “pointed it at the victim.” The evidence showed Z.J. was the “leader” of the crime spree on

July 22, 2018 and used a pistol in committing the aggravated robberies at that time. Z.J. had been

–7– provided services available to the juvenile court, but as set forth in the juvenile court’s transfer

order, Z.J. “unsuccessfully completed juvenile probation and exhibited assaultive conduct while

in juvenile placement and in detention.” Thus, despite Z.J.’s history of receiving services available

to the juvenile court, Z.J.’s criminal behavior continued and escalated over time. “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 in the transfer order, based on evidence produced at the transfer hearing . . . bear

no rational relation to the specific reasons the order gives” to justify transfer. Moon, 451 S.W.3d

at 46. In light of the juvenile court’s findings regarding Z.J.’s receipt of services and their

inefficacy and our review of the record, which supports those findings, we conclude the juvenile

court did not abuse its discretion by waiving jurisdiction and transferring Z.J. for trial as an adult.

We overrule Z.J.’s sole issue.

The juvenile court’s certification and transfer order is affirmed.

/David L. Bridges/ DAVID L. BRIDGES JUSTICE

190190F.P05

–8– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE MATTER OF Z.J., A JUVENILE On Appeal from the 305th Judicial District Court, Dallas County, Texas No. 05-19-00190-CV Trial Court Cause No. JD-18-00958-X. Opinion delivered by Justice Bridges. Justices Brown and Nowell participating.

In accordance with this Court’s opinion of this date, the juvenile court’s certification and transfer order is AFFIRMED.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered August 1, 2019.

–9–