ACCEPTED 04-14-00352-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/15/2015 3:29:54 PM KEITH HOTTLE CLERK
NO. 04-14-00352-CR
IN THE COURT OF APPEALS FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS FOR THE 1/15/2015 3:29:54 PM KEITH E. HOTTLE FOURTH COURT OF APPEALS DISTRICT Clerk
OF TEXAS
SAN ANTONIO, TEXAS
JOHN GONZALES, III, Appellant
VS.
THE STATE OF TEXAS, Appellee
Trial Cause No. 2013-CR-7917 Appeal from the 386th District Court Bexar County, Texas Hon. Laura Parker, Presiding
APPELLANT’S REPLY BRIEF
MICHAEL D. ROBBINS Assistant Public Defender Paul Elizondo Tower 101 W. Nueva St., Suite 310 San Antonio, Texas 78205 ORAL ARGUMENT (210) 335-0701 NOT REQUESTED FAX (210) 335-0707 mrobbins@bexar.org Bar No. 16984600
ATTORNEY FOR APPELLANT
i Table of Contents
Page
Table of Contents . . . . . . . . . . ii
Table of Authorities . . . . . . . . . iii
Word Count . . . . . . . . . . . iv
Reformulation of Argument In Light of Moon v. State . . . . 1
Opening Brief Re-Urged If Necessary . . . . . . . 8
Conclusion and Prayer . . . . . . . . . 8
Certificate of Service. . . . . . . . . . 9
ii Table of Authorities
Statutes
TEX. FAM. CODE § 54.02 (West 2008) . . . . . . passim
Rules
TEX. R. APP. P. 9.4 (West 2015) . . . . . . . . iv
TEX. R. APP. P. 25.2 (West 2015) . . . . . . . 4
TEX. R. APP. P. 38.3 (West 2014) . . . . . . . 1
Cases
Guerrero v. State, No. 14-13-00101-CR, 2014 Tex. App. LEXIS 13773 (Tex. App. – Houston [14th Dist.] Dec. 23, 2014, no pet.)(mem. op., not designated for publication) . . . . . . . 6,7
Moon v. State, 410 S.W.3d 366 (Tex. App. – Houston [1st Dist.] 2013), aff’d, 2014 Tex. Crim. App. LEXIS 1918 (Tex. Crim. App. Dec. 10, 2104) . 7
Moon v. State, No. PD-1215-13, 2014 Tex. Crim. App. LEXIS 1918 (Tex. Crim. App. Dec, 10, 2104)(designated for publication) . . . passim
Rankin v. State, 46 S.W.3d 899 (Tex. Crim. App. 2001) . . . . 4
iii Word Count
Pursuant to TEX. R. APP. P. 9.4(i)(1) & (i)(2)(C) (West 2015), the word
count, from the beginning of the Reformulation of Argument section to, but
excluding, the signature block, is 1,671. The total word count is 2,218. The
Appellate Public Defender’s Office uses Microsoft Word 2010.
iv TO THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS DISTRICT OF TEXAS:
This reply brief is filed on behalf of Appellant, John Gonzales, III, by
Michael D. Robbins, Assistant Public Defender, in response to the brief filed by
the State on January 7, 2015. It is filed by virtue of TEX. R. APP. P. 38.3 (West
2015).
Reformulation of Argument In Light of Moon v. State
Introduction.
On December 10, 2014, the Texas Court of Criminal Appeals issued its
opinion in Moon v. State, No. PD-1215-13, 2014 Tex. Crim. App. LEXIS 1918
(Tex. Crim. App. Dec. 10, 2014)(designated for publication). In that case, the
Court of Criminal Appeals for the first time addressed the standards of appellate
review of juvenile waiver and transfer hearings pursuant to TEX. FAM. CODE §
54.02 (West 2008). These standards had previously been addressed only by the
intermediate courts of appeals, with mixed and conflicting results. The First Point
of Error in Appellant’s opening brief addressed this issue, without the benefit of
the Moon opinion, which was issued after Appellant filed his brief, but prior to the
State filing its brief. Accordingly, this Reply Brief will reformulate Appellant’s
argument, in light of Moon, in addition to addressing the preservation of error
argument made by the State.
1 This Reply Brief does not address Appellant’s Second Point of Error,
regarding Appellant’s motion to suppress heard in adult criminal court. That point
would be moot if this Honorable Court dismisses this case because of the Moon
standard of review. However, if that does not occur, Appellant re-urges the
argument made in the Second Point of Error.
Appellate Review under Moon v. State.
The statutory scheme for waiving juvenile jurisdiction and transferring a
juvenile case into adult court is contained in TEX. FAM. CODE § 54.02 (West 2008),
and specifically in Subsections (a)(3) and (f). It was summarized in both
previously-filed briefs (Appellant’s Brief, 13-14; State’s Brief, 6-7) and will not be
repeated here. “What is lacking in our statutory scheme … is any express statement
of the applicable standard of appellate review of the juvenile court’s transfer
order.” Moon, 2014 Tex. Crim. App. LEXIS 1918 at *24. The Court of Criminal
Appeals supplied the proper standard in Moon.
“[I]n evaluating a juvenile court’s decision to waive its jurisdiction, the
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.’” Id. at *44. This may include both legal and factual sufficiency review. Id.
at *40. The appellate court should then review the juvenile court’s ultimate waiver
of jurisdiction under an abuse of discretion standard. “That is to say, in deciding
2 whether the juvenile court erred to conclude that 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 and 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?” Id. at *44-*45.
The Court of Criminal Appeals disapproved of the tendency of trial courts to
use boilerplate undetailed findings of fact. The trial court “should take pains to
‘show its work,’ as it were, by spreading its deliberative process on the record,
thereby providing a sure-footed and definite basis from which an appellate court
can determine that its decision was in fact appropriately guided by the statutory
criteria ….” Id. at 51. The statutory process is poorly served by a transfer order “so
lacking in specifics that the appellate court is forced to speculate” about the trial
court’s reasons for transfer. Id. at 52. The reviewing court must therefore limit its
sufficiency review to the facts the juvenile court expressly relied on, as required to
be expressively set out in its transfer order under Section 54.02(h). Id. at *53.
3 Preservation of Error.
The State urges this Honorable Court to find that Appellant waived his
complaint on appeal, by not objecting to the boilerplate, non-specific language in
the trial court’s order waiving juvenile jurisdiction and transferring the case to
criminal court. (State’s Brief, 7-8). The State’s argument in this particular ignores
the fact that, prior to Moon, the trial court’s order of waiver and transfer would
have been considered to be in proper form. Trial counsel had no reason to object to
the language of the order in anticipation of a ruling by the Court of Criminal
Appeals more than two years in the future. 1
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ACCEPTED 04-14-00352-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/15/2015 3:29:54 PM KEITH HOTTLE CLERK
NO. 04-14-00352-CR
IN THE COURT OF APPEALS FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS FOR THE 1/15/2015 3:29:54 PM KEITH E. HOTTLE FOURTH COURT OF APPEALS DISTRICT Clerk
OF TEXAS
SAN ANTONIO, TEXAS
JOHN GONZALES, III, Appellant
VS.
THE STATE OF TEXAS, Appellee
Trial Cause No. 2013-CR-7917 Appeal from the 386th District Court Bexar County, Texas Hon. Laura Parker, Presiding
APPELLANT’S REPLY BRIEF
MICHAEL D. ROBBINS Assistant Public Defender Paul Elizondo Tower 101 W. Nueva St., Suite 310 San Antonio, Texas 78205 ORAL ARGUMENT (210) 335-0701 NOT REQUESTED FAX (210) 335-0707 mrobbins@bexar.org Bar No. 16984600
ATTORNEY FOR APPELLANT
i Table of Contents
Page
Table of Contents . . . . . . . . . . ii
Table of Authorities . . . . . . . . . iii
Word Count . . . . . . . . . . . iv
Reformulation of Argument In Light of Moon v. State . . . . 1
Opening Brief Re-Urged If Necessary . . . . . . . 8
Conclusion and Prayer . . . . . . . . . 8
Certificate of Service. . . . . . . . . . 9
ii Table of Authorities
Statutes
TEX. FAM. CODE § 54.02 (West 2008) . . . . . . passim
Rules
TEX. R. APP. P. 9.4 (West 2015) . . . . . . . . iv
TEX. R. APP. P. 25.2 (West 2015) . . . . . . . 4
TEX. R. APP. P. 38.3 (West 2014) . . . . . . . 1
Cases
Guerrero v. State, No. 14-13-00101-CR, 2014 Tex. App. LEXIS 13773 (Tex. App. – Houston [14th Dist.] Dec. 23, 2014, no pet.)(mem. op., not designated for publication) . . . . . . . 6,7
Moon v. State, 410 S.W.3d 366 (Tex. App. – Houston [1st Dist.] 2013), aff’d, 2014 Tex. Crim. App. LEXIS 1918 (Tex. Crim. App. Dec. 10, 2104) . 7
Moon v. State, No. PD-1215-13, 2014 Tex. Crim. App. LEXIS 1918 (Tex. Crim. App. Dec, 10, 2104)(designated for publication) . . . passim
Rankin v. State, 46 S.W.3d 899 (Tex. Crim. App. 2001) . . . . 4
iii Word Count
Pursuant to TEX. R. APP. P. 9.4(i)(1) & (i)(2)(C) (West 2015), the word
count, from the beginning of the Reformulation of Argument section to, but
excluding, the signature block, is 1,671. The total word count is 2,218. The
Appellate Public Defender’s Office uses Microsoft Word 2010.
iv TO THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS DISTRICT OF TEXAS:
This reply brief is filed on behalf of Appellant, John Gonzales, III, by
Michael D. Robbins, Assistant Public Defender, in response to the brief filed by
the State on January 7, 2015. It is filed by virtue of TEX. R. APP. P. 38.3 (West
2015).
Reformulation of Argument In Light of Moon v. State
Introduction.
On December 10, 2014, the Texas Court of Criminal Appeals issued its
opinion in Moon v. State, No. PD-1215-13, 2014 Tex. Crim. App. LEXIS 1918
(Tex. Crim. App. Dec. 10, 2014)(designated for publication). In that case, the
Court of Criminal Appeals for the first time addressed the standards of appellate
review of juvenile waiver and transfer hearings pursuant to TEX. FAM. CODE §
54.02 (West 2008). These standards had previously been addressed only by the
intermediate courts of appeals, with mixed and conflicting results. The First Point
of Error in Appellant’s opening brief addressed this issue, without the benefit of
the Moon opinion, which was issued after Appellant filed his brief, but prior to the
State filing its brief. Accordingly, this Reply Brief will reformulate Appellant’s
argument, in light of Moon, in addition to addressing the preservation of error
argument made by the State.
1 This Reply Brief does not address Appellant’s Second Point of Error,
regarding Appellant’s motion to suppress heard in adult criminal court. That point
would be moot if this Honorable Court dismisses this case because of the Moon
standard of review. However, if that does not occur, Appellant re-urges the
argument made in the Second Point of Error.
Appellate Review under Moon v. State.
The statutory scheme for waiving juvenile jurisdiction and transferring a
juvenile case into adult court is contained in TEX. FAM. CODE § 54.02 (West 2008),
and specifically in Subsections (a)(3) and (f). It was summarized in both
previously-filed briefs (Appellant’s Brief, 13-14; State’s Brief, 6-7) and will not be
repeated here. “What is lacking in our statutory scheme … is any express statement
of the applicable standard of appellate review of the juvenile court’s transfer
order.” Moon, 2014 Tex. Crim. App. LEXIS 1918 at *24. The Court of Criminal
Appeals supplied the proper standard in Moon.
“[I]n evaluating a juvenile court’s decision to waive its jurisdiction, the
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.’” Id. at *44. This may include both legal and factual sufficiency review. Id.
at *40. The appellate court should then review the juvenile court’s ultimate waiver
of jurisdiction under an abuse of discretion standard. “That is to say, in deciding
2 whether the juvenile court erred to conclude that 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 and 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?” Id. at *44-*45.
The Court of Criminal Appeals disapproved of the tendency of trial courts to
use boilerplate undetailed findings of fact. The trial court “should take pains to
‘show its work,’ as it were, by spreading its deliberative process on the record,
thereby providing a sure-footed and definite basis from which an appellate court
can determine that its decision was in fact appropriately guided by the statutory
criteria ….” Id. at 51. The statutory process is poorly served by a transfer order “so
lacking in specifics that the appellate court is forced to speculate” about the trial
court’s reasons for transfer. Id. at 52. The reviewing court must therefore limit its
sufficiency review to the facts the juvenile court expressly relied on, as required to
be expressively set out in its transfer order under Section 54.02(h). Id. at *53.
3 Preservation of Error.
The State urges this Honorable Court to find that Appellant waived his
complaint on appeal, by not objecting to the boilerplate, non-specific language in
the trial court’s order waiving juvenile jurisdiction and transferring the case to
criminal court. (State’s Brief, 7-8). The State’s argument in this particular ignores
the fact that, prior to Moon, the trial court’s order of waiver and transfer would
have been considered to be in proper form. Trial counsel had no reason to object to
the language of the order in anticipation of a ruling by the Court of Criminal
Appeals more than two years in the future. 1
The granting of the State’s motion to transfer constituted a pretrial ruling
raised by a written motion and ruled on before trial. TEX. R. APP. P. 25.2(a)(2)(A)
(West 2015), and Mr. Gonzales obviously had the right to appeal. 2 The trial court’s
certification of right to appeal reflects this. (CR, 101). Appellant’s First Point of
Error is that the trial court abused its discretion in waving juvenile jurisdiction,
because the evidence was insufficient to support the juvenile court’s findings.
(Appellant’s Brief, 22). Sufficiency of the evidence issues need not be preserved at
the trial level, and may be raised for the first time on appeal. Rankin v. State, 46
1 The transfer hearing was held on October 19, 2012. (CR, 19). Moon v. State was decided on December 10, 2014. 2 If the juvenile court improperly waived its jurisdiction, the criminal court did not gain jurisdiction, and this case is also appealable on grounds of a jurisdiction defect under Rule 25.2(a)(2)(A)..
4 S.W.3d 899, 901 (Tex. Crim. App. 2001). The State’s allegation of procedural
default is without merit.
The Order of Waiver and Transfer Was Unspecific Boilerplate.
The juvenile court’s order of waiver and transfer makes 12 findings (1A –
11) and then states 12 reasons for transfer (1A – 11). The sets of findings and
reasons are identical. (CR, 19-22). In light of the holding in Moon, these
constituted an insufficient basis for appellate review.
The first two reasons state that Mr. Gonzales was alleged to have committed
the offense of murder, merely repeat the allegations contained in the State’s
original petition for waiver of jurisdiction. Compare (CR, 6) with (CR, 21).
Reasons 2 and 3 state facts regarding Mr. Gonzales’s age and address, and Reason
4 states the name and address of his mother. Reasons 5, 6, and 7 state that there has
been no adjudication hearing and the procedural requirements were met. These
parrot, in part, the statutory requirements of TEX. FAM. CODE § 54.02(a), (b), and
(d) (West 2008).
Reasons 8 through 10 state that the court considered whether the alleged
offense was against a person or property and that the alleged offense was
committed against a person, that the court considered the sophistication and
maturity of the child, the record and previous history of the child, and the prospects
for adequate protection of the public and the likelihood of rehabilitation of the
5 child in the juvenile system. See TEX. FAM. CODE §§ 54.02(f)(1) – (f)(4) (West
2008). Reason 11 parrots the language of Family Code Section. 54.02(a)(3) and
waives juvenile jurisdiction. None of these reasons allude to the court’s specific
reasoning apart from the statutory language. Clearly, the juvenile court did not
“show its work.” The juvenile court stated what it found, but why it made those
findings.
The Juvenile Court Abused Its Discretion.
The juvenile court’s order of waiver of jurisdiction in the present case is
much like the orders in Moon and in Guerrero v. State, No. 14-13-00101-CR, 2014
Tex. App. LEXIS 13773 (Tex. App. – Houston [14th Dist.] Dec. 23, 2014, no pet.)
(mem. op., not designated for publication). The order stated only conclusory facts
rather than specific facts underlying the court’s discretionary order. Although the
juvenile court did make reference to considering “the record and previous history
of the child” (CR, 22 [Reason 10]), it did not state what in the child’s record and
previous history caused it to exercise its discretion as it did. The juvenile court
found that that was an offense against the person (CR, 22 [Reason 8]), and that the
welfare of the community required transfer. (CR, 22 [Reason 11]).
As in Moon, the juvenile court in the present case did not “show it work.”
“The only reason specifically stated on the face of the transfer order to justify the
waiver of juvenile jurisdiction is that the offense alleged is a serious one. The only
6 fact specified in the written transfer order to support this reason was that the
offense … is an offense against the person of another ... [A] waiver of jurisdiction
based on this particular reason, fortified only by this fact, constitutes an abuse of
discretion.” Moon, 2014 Tex. Crim. App. LEXIS 1918 at *53-*54.
The Remedy.
Moon was ultimately decided by the Court of Criminal Appeals, rather that
the intermediate appellate court. The Court of Criminal Appeals affirmed the court
of appeals, id. at *59, and included a long footnote about possible further
proceedings at the juvenile court level. Id. at *59-*62 n. 90. The proper remedy is
therefore found in the court of appeals’ opinion, which was affirmed. That court
found that the juvenile court abused its discretion when it waived jurisdiction, and
that the criminal district court lacked jurisdiction over the case. Moon v. State, 410
S.W.3d 366, 378 (Tex. App. – Houston [1st Dist.] 2013), aff’d, 2014 Tex. Crim.
App. LEXIS 1918 (Tex. Crim. App. Dec. 10, 2014). This Honorable Court should
dismiss the district court’s judgment and dismiss the case. It should further hold
that the case remains pending in the juvenile court. Id.; Guerrero, 2014 Tex. App.
LEXIS 13773 at *9.
7 Opening Brief Re-Urged If Necessary
The undersigned counsel believes that Moon v. State is controlling, and that
this case must be dismissed. If this Honorable Court disagrees, Appellant does not
waive his opening brief, and re-submits that brief for consideration of this
Honorable Court, requesting that the juvenile court’s order also be evaluated for
factual sufficiency of the evidence. Moon, 2014 Tex. Crim. App. LEXIS 1918 at
*40.
Conclusion and Prayer
WHEREFORE, PREMISES CONSIDERED, the Appellant prays the Court
of Appeals dismiss this appeal and remand this case to the juvenile court for
further proceedings.
Respectfully submitted,
/s/ Michael D. Robbins MICHAEL D. ROBBINS Assistant Public Defender Paul Elizondo Tower 101 W. Nueva Sr., Suite 310 San Antonio, Texas 78205 (210) 335-0701 FAX (210) 335-0707 mrobbins@bexar.org Bar No. 16984600 ATTORNEY FOR APPELLANT
8 Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the above and foregoing Reply Brief has been emailed to Mr. Nathan Morey, Assistant District Attorne, Paul Elizondo Tower, 101 W. Nueva St., Suite 370, San Antonio, Texas 78205, on January 15, 2015.
/s/ Michael D. Robbins MICHAEL D. ROBBINS Assistant Public Defender