in the Matter of Z.M.

• Court: Court of Appeals of Texas
• Decided: October 21, 2021
• Docket: 02-21-00213-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00213-CV ___________________________

IN THE MATTER OF Z.M.

On Appeal from the 323rd District Court Tarrant County, Texas Trial Court No. 323-115441-21

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION

Z.M., a juvenile alleged to have committed capital murder, contends in a single

issue that the juvenile court abused its discretion by waiving its original jurisdiction and

transferring the case for criminal proceedings against appellant in the criminal district

court. Because we hold that the trial court did not abuse its discretion, based on the

seriousness of the alleged offense in light of appellant’s chance of rehabilitation through

the juvenile system, we affirm the trial court’s order.

I. Governing Law and Standard of Review 1

Family Code Section 54.02 sets forth the findings a trial judge must make to

waive jurisdiction over a juvenile proceeding and transfer the case to the criminal district

court:

(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 [of the alleged offense], if the offense is a capital 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

Because we set forth the relevant facts in detail in our analysis of appellant’s sole 1

issue, we dispense with a brief introductory background.

2 of the offense alleged or the background of the child [or both] the welfare of the community requires criminal proceedings.

Tex. Fam. Code Ann. § 54.02(a); see id. § 51.02(2) (defining “child” as “a person who is

. . . ten years of age or older and under 17 years of age”). The State must persuade the

juvenile court by a preponderance of the evidence that the community’s welfare requires

the transfer, either because of the seriousness of the offense or the child’s background,

or both. In re A.K., No. 02-20-00410-CV, 2021 WL 1803774, at *19 (Tex. App.—Fort

Worth May 6, 2021, pet. denied) (mem. op.).

In making the determination required by Section 54.02(a)(3), the juvenile court

must 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 child’s sophistication and maturity, as well as his record and

previous history; and, finally, (3) whether the “use of procedures, services, and facilities

currently available to the juvenile court” will adequately protect the public and be likely

to rehabilitate the child. Tex. Fam. Code Ann. § 54.02(f). These nonexclusive factors

facilitate the juvenile court’s balancing of the alleged offender’s “potential danger to the

public” with his “amenability to treatment.” A.K., 2021 WL 1803774, at *19. Any

combination of these criteria may suffice to support a waiver of jurisdiction; not every

criterion need weigh in favor of transfer. Id. The juvenile court need not consider any

other factors, nor need it find that the evidence establishes each factor. Id. “A juvenile

transfer order entered after the required transfer hearing and complying with the

3 statutory requirements constitutes a valid waiver of jurisdiction even if the transfer

order does not contain factually-supported, case-specific findings.” Id. (quoting

Ex parte Thomas, 623 S.W.3d 370, 383 (Tex. Crim. App. 2021)).

We review a transfer order using two steps: first, we review the trial court’s

Section 54.02(f) findings using a traditional evidentiary-sufficiency review;2 second, we

review the overall waiver decision for an abuse of discretion. Id. at *18. Here, appellant

appears to challenge the sufficiency of the evidence supporting only two of the trial

court’s findings: “that the likelihood of reasonable rehabilitation of [appellant] by the

use of procedures, services, and facilities currently available to the Juvenile Court is

low” and that “it is contrary to the best interests of the public to retain jurisdiction.”

Appellant contends the evidence establishes the opposite of both findings.

In deciding whether the trial court abused its discretion in making the ultimate

decision to waive jurisdiction and transfer the case––whether it erred to conclude that

the seriousness of the offense alleged or the background of the juvenile or both called

for criminal proceedings for the welfare of the community––we simply ask, in light of

2 Evidence is legally insufficient only when (1) the record bears no evidence of a vital fact, (2) the rules of law or of evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Shields v. Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). We may set aside a finding for factual sufficiency only if, after considering and weighing all the pertinent record evidence, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the finding should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g).

4 our 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. A juvenile court abuses its discretion when

its transfer decision is essentially arbitrary, given the evidence upon which it was based.

Id. By contrast, a waiver decision representing “a reasonably principled application of

the legislative criteria” generally will pass muster under this standard of review. Id.

II. Evidence Relevant to Statutory Findings

Because appellant does not challenge the existence of probable cause, we need

not detail the evidence concerning the crime other than to say that the police obtained

evidence that appellant, along with another juvenile, allegedly planned a night-time

robbery in an apartment complex; located and followed the victim to a darkened

passageway inside the complex; held her at knifepoint while attempting to empty her

pockets to find her car keys; and knocked her to the ground, after which appellant

allegedly stabbed her in the neck. Appellant and his co-actor allegedly fled to the

apartment complex where appellant lived and, from there, concealed themselves for

five days and arranged to obtain fake identification and go into hiding in a different

location. Appellant was fourteen at the time and already on juvenile probation for

evading arrest, unauthorized use of a vehicle, and burglary of a vehicle.

Appellant’s Tarrant County Juvenile Services probation officer testified about

appellant’s prior involvement in the juvenile system. He said that appellant first

committed the evading-arrest and unauthorized-use-of-a-vehicle offenses and that

5 officers had seized a knife from appellant in connection with the unauthorized-use

offense. Appellant was offered the opportunity to participate in the Tarrant County

Advocate Program (TCAP), but he never started because the COVID-19 pandemic

affected the program’s availability. In July 2020, appellant reoffended by committing

the burglary of a vehicle. As a result, his probation was extended, and he was ordered

to participate in another program, through the Tarrant Youth Recovery Center (TYRC).

TYRC provides a treatment program for substance abuse. Appellant, a

marijuana user, was in the residential treatment program for two months and in

outpatient treatment afterward; he did not complete the outpatient treatment

successfully. Appellant admitted to his probation officer that while in the program, he

was just going through the motions.

According to appellant’s probation officer, appellant was not able to physically

report or take a drug test during the pandemic. Instead, he met with his probation

officer virtually three times a month. Appellant’s mother was also available for virtual

meetings, and she had a positive attitude. Likewise, the probation officer’s interactions

with appellant’s family were “[v]ery positive, very cooperative.” COVID restrictions

also prevented appellant from taking an anger-management class.

Appellant’s aunt had said she felt she could be responsible for appellant and

supervise him at home. But appellant did not have a steady home life. He moved back

and forth between his mother’s apartment and his aunt’s apartment in the same

6 complex, at his own discretion. His aunt was not as strict as his mother, but although

appellant liked that, he knew it was bad for him.

Appellant was attending school virtually during the pandemic. His field officer

assessed his intelligence as “average.”

While in detention for the alleged capital murder, appellant had once been

verbally abusive toward staff and had some negative interaction with peers but had also

stayed at a level one “outstanding” behavioral rating for most of the 110 days he had

been detained.

Appellant’s probation officer testified that in similar cases, he would have

recommended resource staffing––which appears to consist of a committee that

explores the various programs and services available and most appropriate for the

juvenile––but in this case, the trial court had instructed him not to do so. He agreed

that violent offenders are not categorically excluded from resource staffing. But

appellant’s probation officer agreed that, even without resource staffing, there were still

juvenile services available that appellant could benefit from.

Based on details about how the capital murder was executed and planned,

appellant’s probation officer opined that appellant was more sophisticated than other

fourteen-year-olds he had dealt with and that, based on his personal experience with

juvenile services, he could not think of any juvenile-department program that would

give appellant a chance of rehabilitation. But he also said he could try to look for a

program “that could target [appellant’s] emotions, social skills[,] and the wrongdoing

7 on any offense he is found guilty of.” Appellant’s probation officer believed that “with

[appellant’s] young age and the services that juvenile can provide[,] that juvenile [could]

rehabilitate” appellant and that keeping appellant in the juvenile system would protect

the public.

A juvenile-services probation officer who had not supervised appellant discussed

the various programs available within the department, primarily involving family

engagement. TCAP, for instance, provides trained adult mentors to high-risk youth,

helps them find employment, and engages them in prosocial activities. She also talked

about the general availability of mental-health services and drug-treatment options.

Appellant’s PACT3 report showed a high risk of reoffending, with a moderate

criminal history.

Dr. Emily Fallis, a clinical psychologist who evaluated appellant, opined that lack

of structure was a problem in appellant’s life. She also noted that appellant told her his

mother had been “physical” when punishing him, including hitting him with a phone

book, and that there was no father in the home. According to Dr. Fallis, physical abuse

in childhood can cause someone to act out in a violent manner. She agreed that

appellant was at an age “when kids don’t really know how to cope with things.” She

listed multiple services in the Tarrant County juvenile system that “have programs to

address these children that do not have a father figure at home and have abandonment

PACT stands for Positive Achievement Change Tool. A.K., 2021 WL 1803774, 3

at *3.

8 issues”: Big Brothers Big Sisters; family intervention; individual and group therapy; and

gang intervention, to name a few. She thought appellant could benefit from such

programs. Dr. Fallis also opined that programs exist that can help “somebody that has

been physically abused and acted out violently be rehabilitated” and that the recidivism

rate goes down when someone who has been physically abused attends counseling.

According to Dr. Fallis’s evaluation, appellant was detached from relationships

and had an overly positive view of himself, both of which she considered protective

mechanisms. She thought more treatment options would be available to him in the

juvenile system than the adult system and thought he could benefit from the available

options. She thought appellant’s risk of harming others was low “given that . . . what

he faces right now are still alleged offenses.” But on cross-examination, Dr. Fallis

admitted that in completing her evaluations, she does “not use information from a

police report in a crime that has not yet gone to court, whether it be a[] juvenile or an

adult.” Thus, she did not consider the alleged capital murder in considering her

evaluation of risk.

Overall, Dr. Fallis opined that appellant’s “age at the time of the alleged offenses

and early childhood stressors,” as well as his “amenability to treatment,” were reasons

“to consider keeping him in the juvenile system”

III. Analysis and Conclusion

Our review of the record shows that the evidence pertinent to the challenged

Section 54.02(f) findings is sufficient. Although some evidence contradicts the trial

9 court’s findings––such as Dr. Fallis’s testimony that appellant is at a low risk to reoffend

and that he could benefit from some juvenile services, especially therapy––the evidence

supporting the findings is not exceptionally weak, nor is the conflicting evidence

overwhelming. No person was able to testify to specific programs available to assist in

rehabilitating appellant in light of the heinousness of the crime. And the evidence

showed that appellant allegedly committed this “worst crime possible,” in the judge’s

words, less than a year after first entering the juvenile system; in that short time, he had

committed three other crimes and had carried a knife during one of them. Despite

appellant’s participation in a two-month residential and subsequent intensive outpatient

drug-treatment program, juvenile-services intervention had not prevented appellant’s

alleged participation in a more serious offense than his prior ones. Finally, the State

presented at least some evidence that appellant stabbed the victim after she was already

on the ground, and while he and the other juvenile were leaving the scene, either

because he got angry when they could not find her keys or because he did not want her

to be able to identify him. We hold this evidence to be legally and factually sufficient

to support the trial court’s finding “that the likelihood of reasonable rehabilitation of

[appellant] by the use of procedures, services, and facilities currently available to the

Juvenile Court is low” and that “it is contrary to the best interests of the public [for the

trial court] to retain jurisdiction.”

Additionally, we hold that the trial court did not abuse its discretion by deciding

to waive its jurisdiction and transfer the case to the criminal district court. After a two-

10 day hearing at which the evidence detailed above was elicited, the State focused its

closing argument exclusively on the heinousness of the crime, contending that “[t]he

juvenile system is not made to rehabilitate this behavior” and that appellant would have

only until his nineteenth birthday––a relatively short time––in the juvenile system to

participate in any potentially rehabilitative services. In announcing its decision, the trial

court pointed out that although appellant had been at low risk for his previous offenses,

“there is no other way to escalate” the crime with which he is charged. The trial court

thus expressed concern that if appellant were to continue within the juvenile system,

“somebody else will die.”

The nature and seriousness of the specific alleged offense, alone, may justify the

juvenile court’s waiver of jurisdiction “notwithstanding other section 54.02(f) factors,

so long as the offense: (1) is substantiated by evidence at the transfer hearing, and (2)

is of sufficiently egregious character.” Matter of M.A.T., No. 13-18-00295-CV, 2018 WL

5289550, at *7 (Tex. App.—Corpus Christi–Edinburg Oct. 25, 2018, no pet.) (mem.

op.); see also, e.g., Matter of S.T., No. 04-18-00133-CV, 2018 WL 5927983, at *6 (Tex.

App.—San Antonio Nov. 14, 2018, pet. denied) (mem. op.). Here, the evidence

suggested that although the actual murder was impulsive, the underlying robbery was

allegedly carefully planned for the sole purpose of stealing the victim’s car while evading

detection and––even without considering the murder––was carried out without regard

to the victim’s welfare. Moreover, appellant allegedly committed the offense after what

appears to be a pattern of escalating behavior. Accordingly, we cannot say on these

11 facts that the trial court abused its discretion by deciding, in its discretion, to waive its

jurisdiction and transfer the case to the criminal district court.

We overrule appellant’s sole issue and affirm the trial court’s order.

/s/ Dabney Bassel

Dabney Bassel Justice

Delivered: October 21, 2021