J.P.O., Matter Of

904 S.W.2d 695, 1995 Tex. App. LEXIS 1662

• Court: Court of Appeals of Texas
• Decided: April 24, 1995
• Docket: No. 13-94-586-CV
• Status: Published

Opinions

OPINION

SEERDEN, Chief Justice.

Appellant, J.P.O., a juvenile, was charged with burglary when he was sixteen years old. He appeals from an order by which a juvenile court waived its exclusive, original jurisdiction and transferred his case to criminal district court. By three^ points of error, J.P.O. contends the court made erroneous evidentiary rulings at the transfer hearing and he challenges the legal and factual sufficiency of the juvenile court’s finding of probable cause and finding that the seriousness of the offense requires the juvenile’s transfer for the welfare of the community. We affirm.

A juvenile court may waive its exclusive, original jurisdiction and transfer a child to the appropriate district court for criminal proceedings if the child is alleged to have committed a felony and was aged fifteen or older at the time of the alleged offense. Tex.Fam.Code Ann. § 54.02(a) (Vernon Supp.1994). When considering whether to transfer its jurisdiction, the court must conduct a full investigation and hearing. Id. Before conducting the transfer hearing, the juvenile court shall order and obtain a certification investigation report. This report consists of a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense. Tex.Fam.Code Ann. § 54.02(d) (Vernon 1986). The purpose of a hearing conducted pursuant to 54.02 is not to determine guilt or innocence but to determine whether the juvenile’s and society’s best interest is served by maintaining juvenile custody of the child or by transferring him to a criminal district court. After reviewing these reports and after the hearing, the juvenile court then determines whether there is probable cause to believe that the child committed the offense alleged, and, that because of the seriousness of the offense, or, the background of the child, the welfare of the community requires criminal proceedings. Id. In making its decision, the juvenile court shall consider, among other matters, the following:

1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person; 2) whether the alleged offense was committed in an aggressive and premeditated manner; 3) whether there is evidence on which a grand jury may be expected to return an indictment; 4) the sophistication and maturity of the child; 5) the record and previous history of the child; and 6) 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.

Tex.Fam.Code Ann. § 54.02(f) (Vernon 1986).

Absent a showing of an abuse of discretion, the appellate court will not disturb the trial court’s findings. In re J.S.C., 875 S.W.2d 325, 326 (Tex.App.—Corpus Christi 1994, writ dism’d); In re D.W.L., 828 S.W.2d 520, 525 (Tex.App.—Houston [14th Dist.] 1992, no writ).

In its order, the court stated that, among other things, it had considered the factors required by Family Code section 54.02(f). The court’s waiver order then states, “After conducting such full investigation, including evidence and argument of counsel, the Court finds that the welfare of the community requires criminal proceedings because of seriousness of offense, that there is probable cause to believe that the child committed the offense of Burglary of a Habitation ...” The court’s order continues stating,

This Court is hereby waiving its exclusive, original jurisdiction for the following reasons:

1. There is evidence in which a grand jury may be expected to return an indictment.

2. The child is sophisticated and mature enough to understand right from wrong and the consequences of his actions.

3. The prospects of adequate protection of the public and the likelihood of rehabilitation of the child by use of procedures, services, and facilities are currently not available to the juvenile court. The child did not comply with a term in an informal probation/adjustment.

4.The alleged offense occurred at approximately 2 AM in the victim’s home when the victim was at home and indicating a premeditated manner.

From our review of the record, the incident at issue occurred on April 26, 1993. The victim, Mr. Kalmus, testified that he was asleep when at approximately 2:15 to 2:30 a.m., he was awakened by noises in his kitchen. He went to see what was causing the noise and he came upon two men in his kitchen. Kalmus noticed that one man had the coffee pot and the other had the microwave. Kalmus stated that when the two men saw him come in from the living room, one said to the other, “let’s go.” One man dropped the coffee pot and ran out of the house while the other man ran out of the house with the microwave. Kalmus ran after them. Kalmus testified that he did not recognize J.P.O. at the split moment when he saw the two men in his kitchen. Kalmus stated that when he ran after the men, he soon tackled one of them in his neighbor’s yard. The man he tackled was Frank Rivera who, Kalmus stated that when he had him pinned down and was trying to subdue him, hollered out for “Jerry.” When Jerry came back to aid Frank, that was when Kalmus recognized him as J.P.O. Kalmus stated that he struggled with the two men and he recalled that he had hit J.P.O., but the two men got away from him. Kalmus stated that he saw J.P.O. later in the morning about two blocks away from his house near J.P.O.’s house and that he had a Band-Aid over his left eye. Kalmus stated that he recognized him as the same person he had seen the night before.

On cross-examination, J.P.O.’s attorney challenged his version of the facts. She reminded Kalmus that he had testified less than a year ago at a certification hearing relating to the same events. She attempted to impeach him with prior statements he made at that certification hearing. At the prior hearing, Kalmus had testified that he tackled Jerry and that the two had gotten into a scuffle and that Jerry had hollered out and Frank had come to aid Jerry.

At this point in the testimony, J.P.O.’s attorney was pointing out the differences in Kalmus’s previous version of the facts with what he was telling the court at this hearing. At this point it appears that Kalmus became somewhat frustrated and the following exchange occurred:

Q: Now that I’ve showed you the transcript from the previous hearing, do you now remember testifying differently than you’ve testified here today?

A: Yes.

Q: Okay.

A: I guess, I don’t know. I’m about ready to go to bed. I’ve been up 24 hours. I’m sorry, I’m just—

Q: Well, are you saying that you’re not prepared to testify today?

A: That’s about right. I mean I’ve been up 24 hours. I work night shift in Houston and—

Q: And you don’t have an independent recollection of the events?

A: No ma’am, not right at this present moment I do not.

At this point in the proceeding J.P.O.’s attorney made the following objection:

Your Honor, I ask to strike the testimony of this witness based on he’s testified he does not remember what happened on that day, and he is not in any position to be testifying if that’s true.

After the court overruled this objection, J.P.O.’s attorney continued to question Kal-mus about the events surrounding the incident and he continued to answer her questions as well as the questions presented to him by the State on redirect examination. She showed him a transcript of his former testimony as did the State on redirect. Never again does the record reflect that he had trouble recalling the events or that he asserted that he had no present recollection of the facts that night.

By point of error one, J.P.O. contends that the court erred by overruling his objection to the alleged victim’s testimony. J.P.O. argues that because under Texas Rule of Civil Evidence 602, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter, it was error for the court to allow the victim to continue testifying about events of which he stated he had no present recollection.

No consistent rules regarding the admissibility of evidence have been developed for a transfer hearing, and juvenile courts often consider evidence that would be inad-missable at an adjudication hearing. In re J.S.C., 875 S.W.2d at 330. Strict rules of evidence are not applied in transfer proceedings because the weight of the evidence is judged by whether it would support an indictment for the offense, and, a grand jury, when considering an indictment, is permitted to receive evidence that would be inadmissa-ble at an adjudication hearing or trial. Id.

We conclude that the trial court did not err by allowing Kalmus to continue testifying. In our review of the testimony, after J.P.O.’s attorney showed the victim his prior testimony, he stated that the person he had hit in his yard after the burglary was not J.P.O., but that he was at the incident. We note that it would not be unreasonable for the trier of facts to consider Kalmus’ testimony as more consistent with a temporary mental lapse during the course of the hearing than an admission of a total failure to recall the incident. The juvenile court is the sole factfinder at the waiver of jurisdiction hearing and may choose to believe any or all of the witness’s testimony. In re D.W.L., 828 S.W.2d at 524. The juvenile court, as the sole factfinder, is in the unique position to observe the demeanor and evaluate the credibility of the witnesses, and to select which, if any part of the testimony, to believe. Id. We overrule point one.

By point of error two, J.P.O. argues that there exists no evidence to support the juvenile court’s finding of probable cause, or, alternatively, that the juvenile court’s finding of probable cause was against the great weight and preponderance of the evidence.

The juvenile court’s findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards as are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury’s answers to a charge. In re G.F.O., 874 S.W.2d 729, 731-82 (Tex.App.—Houston [1st Dist.] 1994, no writ). When considering a “no evidence” point of error, we look only to the evidence favorable to the judgment to determine whether there is any evidence to support the finding. In reviewing an “insufficiency point,” we consider and weigh all of the evidence in the case, and, if the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust, we set aside the judgment and remand for a new trial. Id.

A person commits burglary of a habitation if he intentionally or knowingly without the effective consent of the owner enters a habitation with intent to commit a felony or theft or enters a habitation and commits or attempts to commit a felony or theft. Tex.Penal Code Ann. § 30.02(a) (Vernon 1989). Family Code section 54.02 requires the juvenile court to determine whether probable cause exists to believe the child committed the offense alleged. The juvenile court does not determine guilt or innocence at the waiver of jurisdiction hearing, but merely evaluates whether the juvenile should be tried as a juvenile or adult in subsequent proceedings. In re D.W.L., 828 S.W.2d at 524.

Probable cause is defined as sufficient facts and circumstances to warrant a prudent man to believe the suspect committed or was committing the offense. Id. Probable cause for arrest applies the same standard. Id. The probable cause standard of proof embraces a practical, common sense approach rather than the more technical standards applied in the burdens of proof of either beyond a reasonable doubt or a preponderance of the evidence. Id. (citing Gerstein v. Pugh, 420 U.S. 103, 112, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975)); Mayfield v. State, 800 S.W.2d 932, 934 (Tex.App.—San Antonio 1990, no pet.).

Based on the evidence outlined above, we conclude that there exists sufficient evidence to support the trial court’s finding of probable cause. The trial court is in the unique position to judge the weight and credibility to be given to the evidence presented at a waiver of jurisdiction hearing. We conclude that the juvenile court did not abuse its discretion in ruling that there was sufficient evidence of probable cause to believe that J.P.O. committed burglary. We overrule J.P.O.’s second point of error.

By point of error three, J.P.O. contends that the juvenile court abused its discretion in waiving jurisdiction because its finding that the seriousness of the offense requires transfer of J.P.O. to criminal district court for the welfare of the community was supported by no evidence, or, alternatively, was against the great weight and preponderance of the evidence.

Pursuant to section 54.02, the court ordered, obtained and considered a certification investigation report. Included in the certification report was a copy of J.P.O.’s Juvenile Case History maintained by the Victoria County Juvenile Services Department, and a psychological report prepared by Sean Connolly, Ph.D., psychologist.

J.P.O. was bom February 7, 1977. According to his mother, the report states that he has a good attitude and is affectionate. She stated for the report that he is cooperative at times and is an efficient worker. She also stated that he does not have a bad temper and he is truthful. According to his mother, J.P.O. drinks beer and sniffs paint, and smokes cigarettes. The report submitted to the trial court from the Victoria County Juvenile Services Department reflects that J.P.O. has an extensive history of offenses which have been referred to Juvenile Services since January 1989. These referrals include nine burglaries, two motor vehicle thefts, three aggravated assaults, three abuses of a volatile chemical, three public intoxi-cations, criminal trespass, two terroristic threats, as well as other various offenses. The report also states that he is not currently enrolled in school. He last attended the 9th grade. In the past, J.P.O. has been employed in construction and dish washing. At the current time he is unemployed.

A psychological report was also filed with the court. Dr. Connolly’s report reflects that J.P.O. told him that he had been attending the Adult Learning Center on and off in an effort to obtain his GED. He told Dr. Connolly that his performance in school was good and was emphatic that he had never been in special education classes and denied having any learning difficulties. Regarding his employment history, he told Dr. Connolly that he had worked as a construction worker and a dish washer in the past. He stated that he had been out of work for about a month. He stated that he gave up his last job as a construction worker when the crew was going out of town to work and he did not want to go out of town. When asked about whether he had been looking for a job, he stated that he had not and that he wanted to take a while off. The report addressed his psychological condition which reflects that he has been arrested for such offenses as getting into fights, traffic violations, and trying to break into a house. His mother stated that he has had several juvenile arrests for offenses such as stealing bikes, burglarizing a building and curfew tickets. He was first arrested when he was twelve years old. He has been in juvenile detention five times. He stated that he was sent to a juvenile facility for two months when he was fourteen years old. He denied any abuse of alcohol. He acknowledged that he used marihuana occasionally which he described as every few months. He acknowledged that he had been in a gang in the past and is now afraid of them. He suggested that there were some gangs in his neighborhood.

Dr. Connolly’s evaluation of J.P.O. was that his self-expression was good, indicating adequate use of language for communicating thoughts. He was engaged in the evaluation process. There was no evidence of impairment in reasoning or judgment. His level of activity was appropriate. There was no evidence of impairment in immediate, recent, or remote memory. J.P.O.’s test results placed him in the Low Average range of intellectual functioning. His full scale IQ score was 85. In terms of non-verbal areas, his ability to follow the process of familiar social events, spatial judgment and design, and the ability to manipulate parts into a total configuration were good. Alertness to his visual environment and eye-hand coordination were low. Academic indicators show that he has had very little benefit from his educational experiences and practical intelligence is poor.

J.P.O. admitted some emotional stress, but does not perceive himself as having psychological problems. Dr. Connolly found no evidence of exaggeration, denial, excessive defensiveness or rigidity in thinking. Dr. Connolly found that his personal and social history is consistent with a maladaptive pattern of behavior consistent with dropping out of school, under achievement in school, history of arrests, use of drugs and some pattern of indifference towards pursuing important goals in life.

At the hearing, the court heard evidence from the victim and from Tom Hough, a Juvenile Probation Officer, employed by the Victoria County Juvenile Service Department, who was acquainted with J.P.O.

Hough testified and recommended to the court that J.P.O. be certified as an adult and his case transferred to criminal district court. Hough stated that J.P.O. knows right from wrong and that his actions were not the result of his failure to understand the rules of society and the consequences of violating those rules. Hough testified that adequate protection of the public and the likelihood of rehabilitation by the use of procedures, services and facilities are currently not available to J.P.O. through the juvenile system. Hough explained that J.P.O. at the time of the hearing was seventeen years old and would turn eighteen in four months. Thus, Hough continued, that would give Juvenile Services only four months to work with J.P.O. and he did not believe that would be sufficient time to address his needs or to get him any type of treatment or help for any of his problems. Hough testified that he believed that if J.P.O. were sent to the Texas Youth Commission that, because the offense was burglary of a habitation, he would probably be under their care for no more than six months before being placed on parole. Hough also testified that based on his interaction with J.P.O. at Juvenile Services, he believed that he had a substance abuse problem or alcohol problem. He explained that almost every time J.P.O. had been in trouble, alcohol was related.

The juvenile court is the sole fact finder in certification hearings and may choose to believe or disbelieve any or all of any witness’ testimony. In re D.W.L., 828 S.W.2d at 525. Hence, the trial court, as the sole fact finder, was in the unique position to observe the demeanor and evaluate the credibility of the witnesses, and select which, if any, to believe. Id.

Appellate asks that we weigh the testimony and the evidence in the record which was before the juvenile court giving more credence to different portions of the testimony and record evidence than the juvenile court did and make a factual determination different than the juvenile court’s decision. This we will not do from an appellate perch. We review the trial court’s findings and the record and consider and weigh all of the evidence presented. In re K.D.S., 808 S.W.2d 299, 302 (Tex.App.—Houston [1st Dist.] 1991, no writ) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986)). Only if the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust will an appellate court set aside the juvenile court’s finding. Id.

After reviewing the testimony presented at the certification hearing and the reports that were before the juvenile court, we conclude that sufficient evidence exists to support the juvenile court’s findings and that the juvenile court acted within its discretion by ordering a waiver of its jurisdiction and transferring the cause to the criminal district court. A burglary of a home in the middle of the night while the residents are at home asleep is a serious offense. J.P.O. has dropped out of school, is unemployed and is not pursing work, and he has an extensive history of referrals to juvenile services. The psychological evaluation states that he has a conduct disorder and a maladaptive pattern of behavior. Dr. Connolly concluded that J.P.O. would be resistant to treatment and not motivated for counselling. His habits include smoking cigarettes, sniffing paint, and drinking beer. The report filed by juvenile services shows numerous referrals from the Victoria Police Department and the Victoria County Sherrifs Department of offenses committed by J.P.O. since January 1989. While a different conclusion might be reached, this Court will not substitute its judgment for that of the juvenile court. In re K.D.S., 808 S.W.2d at 303. We overrule point three.

We conclude that the juvenile court did not abuse its discretion by waiving its exclusive, original jurisdiction over J.P.O. We affirm the juvenile court’s order.

DORSEY and RODRIGUEZ, JJ., join in majority opinion. SHIRLEY W. BUTTS,¹ Assigned J., concurs with opinion. CHAVEZ, J., dissents with opinion, joined by FEDERICO G. HINOJOSA, Jr. and YÁÑEZ, JJ.