in the Matter of N.J.T., a Juvenile ( 2021 )

NUMBER 13-21-00089-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE MATTER OF N.J.T., A JUVENILE
On appeal from the 138th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Longoria
Appellant N.J.T. 1 contends that the juvenile court abused its discretion in waiving
exclusive jurisdiction and transferring his proceeding to criminal district court for
prosecution as an adult. Specifically, by one issue, N.J.T. argues that the juvenile court
erred because appellee the State failed to meet its burden under § 54.02(j)(4)(A) of the
Texas Family Code to establish by a preponderance of the evidence that for a reason
1 We refer to appellant by his initials as required by statute and to protect his privacy. See TEX.
FAM. CODE ANN. § 56.01(j) (“Neither the child nor his family shall be identified in an appellate opinion
rendered in an appeal or habeas corpus proceedings related to juvenile court proceedings under this title.”).
beyond the control of the state, it was not practicable to proceed in juvenile court before
N.J.T.’s eighteenth birthday. We affirm.
I. BACKGROUND
A. Alleged Offense
On or about October 15, 2018, A.B., a six-year-old girl, made an outcry that she
had been sexually assaulted while in attendance at a church in Brownsville, Texas. On
December 31, 2018, during a church service, A.B. recognized N.J.T. and informed her
mother that he was the alleged perpetrator. On January 8, 2019, while at the Cameron
County Children’s Advocacy Center Monica’s House, A.B.’s mother identified N.J.T. from
several Texas driver’s license photographs as the person A.B. identified. On February 8,
2019, N.J.T. was arrested on the charge of aggravated sexual assault of a child. See TEX.
PEN. CODE ANN. § 22.021. N.J.T.’s date of birth is October 16, 2002, and at the time of
the alleged offense, N.J.T. was about to turn sixteen years old.
B. Procedural History
On March 1, 2019, when N.J.T. was approximately sixteen years old and four
months, the State filed its petition alleging delinquent conduct against N.J.T. which was
assigned cause number 2019-DJV-00103. A jury trial was later set for March 25, 2019,
but the record does not reflect that a jury trial proceeded on that date. On March 21, 2019,
N.J.T.’s trial counsel filed a notice of oral deposition with subpoena duces tecum, and
later on April 15, 2019, filed N.J.T.’s first request for production filed as a motion. On May
29, 2019, N.J.T. failed to appear for court, and announcements were reset to July 31,
2019, which was later set to August 30, 2019. However, on August 30, 2019, N.J.T.’s trial
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counsel was unavailable, and the case was again reset to September 20, 2019. On
September 20, 2019, N.J.T.’s motions, pre-trial motions, and witness list were set for
October 16, 2019, announcements and trial motions were set for November 20, 2019,
and a jury trial was set for December 2, 2019.
Approximately one month after N.J.T. had reached the age of seventeen, on
November 18, 2019, N.J.T.’s previous trial counsel filed a motion for continuance stating
she needed more time to prepare for the case, and one day later, she filed another motion
for authorization to secure an investigator. On November 20, 2019, announcements were
reset to December 18, 2019, where the juvenile court set, among other things, a jury trial
for March 2, 2020. The grand jury found probable cause to believe N.J.T. had engaged
in delinquent conduct as alleged in the State’s petition, which was filed on December 19,
2019. On February 24, 2020, the case was reset to March 6, 2020.
On March 5, 2020, the State filed its petition for discretionary transfer to criminal
court against N.J.T., which was assigned cause number 2020-DJV-00112. On March 6,
2020, the juvenile court signed an order which directed the clerk to issue summons to
N.J.T. for a hearing on the State’s petition for discretionary transfer to criminal court.
N.J.T. appeared with new trial counsel on March 6, 2020, and the discretionary transfer
hearing was set for March 25, 2020. 2 Approximately one week later on March 11, 2020,
the juvenile court signed an order for a complete psychiatric evaluation, a complete
psychosocial evaluation, a full social evaluation and complete diagnostic study, as well
2 We note that the supplemental record reflects that at the hearing on March 6, 2020, a hearing
was set for March 25, 2020, to determine when the discretionary transfer hearing could be set. The record
however reflects that the discretionary transfer hearing was set on March 25, 2020.
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as a full investigation of N.J.T., his circumstances, and the circumstances of the alleged
offenses. On March 25, 2020, the case was reset to May 27, 2020, with a notation of
“(Due to Covid-19).” 3 On May 27, 2020, State and defense counsel agreed to an
approximate two-week reset. On June 8, 2020, the State requested a reset and N.J.T.
agreed to another approximate two-week reset to June 24, 2020 with the juvenile court’s
approval. However, the hearing did not proceed on said date, and on June 30, 2020, the
discretionary transfer hearing and announcements were reset to October 7, 2020, again
with a notation of “(Due to Covid-19).” 4 On August 28, 2020, the social study and
diagnostic study were filed. The discretionary transfer hearing did not proceed on October
7, 2020. Nine days later, N.J.T. turned eighteen.
After N.J.T. turned eighteen, the State requested an unopposed reset setting the
3 We observe that on March 13, 2020, the Texas Supreme Court and the Court of Criminal Appeals
of Texas issued their First Emergency Order Regarding the Covid-19 State of Disaster, which ordered in
relevant part that:
[(2.)] Subject only to constitutional limitations, all courts in Texas may in any case, civil or
criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public—
without a participant’s consent: [(a.)] Modify or suspend any and all deadlines and
procedures, whether prescribed by statute, rule, or order, for a stated period ending no
later than 30 days after the Governor’s state of disaster has been lifted[;] . . . and [(f.)] take
any other reasonable action to avoid exposing court proceedings to the threat of COVID-
19.
See Supreme Court Order of March 13, 2020, Misc. Docket No. 20-9042; Court of Criminal Appeals
Order of March 13, 2020, Misc. Docket No. 20-007.
4 We observe that on June 29, 2020, the Texas Supreme Court issued its Eighteenth Emergency
Order Regarding the Covid-19 State of Disaster, which ordered in relevant part that:
[(3.)] Subject only to constitutional limitations, all courts in Texas may in any case, civil or
criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public—
without a participant’s consent: [(a.)] except as provided in paragraph (b), modify or
suspend any and all deadlines and procedures, whether prescribed by statute, rule, or
order, for a stated period ending no later than September 30, 2020[;] . . . [(g.)] take any
other reasonable action to avoid exposing court proceedings to the threat of COVID-19.
See Supreme Court Order of June 29, 2020, Misc. Docket No. 20-9080.
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hearing to January 13, 2021, the State filed its first amended petition for discretionary
transfer to criminal court adding two new allegations against N.J.T. arising from the same
alleged incident, and filed a motion for a second psychiatric evaluation. One day before
the discretionary transfer hearing, N.J.T.’s trial counsel submitted a notice of filing in
N.J.T.’s case of a petition for discretionary transfer to criminal court and order in a different
juvenile case out of the same county.
On January 14, 2021, the State moved to dismiss cause number 2019-DJV-00103
asserting the cause had been re-indicted and re-filed, and the trial court subsequently
ordered dismissal.
C. Discretionary Transfer Hearing
On January 13, 2021, the juvenile court held a discretionary transfer hearing, and
took judicial notice of everything that had been filed. At the hearing, counsel for N.J.T.
requested the State to set forth it reasons for why there was a delay in proceeding before
N.J.T.’s eighteenth birthday. See TEX. FAM. CODE ANN. § 54.02(j)(4)(A). The State
explained that: (1) it was interrupted by Covid-19, (2) there was an emergency order that
was issued by the governor and the county judge to shelter in place, unless they were
essential personnel and this was not essential personnel at the time, (3) N.J.T.’s prior
defense counsel contributed to the delays, (4) the juvenile court had a hearing, and (5)
the juvenile court reset some hearings on its own initiative due to Covid-19. N.J.T.
responded that: (1) Covid-19 was not a reason for the delay because the State proceeded
with a certification hearing in another matter on June 10, 2020, (2) the docket reflects that
the State kept asking for continuances, (3) the State asked for resets, (4) the State could
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have requested a hearing before N.J.T. turned eighteen, and (5) the State could have
decided to certify N.J.T. as an adult earlier as shown by the fact that the grand jury
indicted him. Towards the conclusion of the hearing, the juvenile court stated as follows:
My ruling is that based on the pandemic, based on all the delays we’ve had
because of the Supreme Court, because of the county judge—I do
remember where [N.J.T.’s prior defense counsel] filed all these motions and
it delayed the case and she wanted all these hearings and all that, that that
further delayed the case, and I will find that the State acted appropriately.
Thereafter, on January 19, 2021, the juvenile court granted N.J.T.’s request for the
following findings to be included in the waiver of jurisdiction and order of transfer to
criminal court:
The Court hereby finds that it did proceed on other discretionary transfers,
specifically [another juvenile proceeding] on June 10, 2020[,] where
witnesses as in this case did appear or were available by video testimony.
The Court further finds, the Social Diagnostic Study on [N.J.T.] was
completed on August 28, 2020 prior to [N.J.T.’s] eighteenth birthday. The
Court also finds that the Petition for Discretionary Transfer to Adult Criminal
Court was re-set on several occasions at the request of the State.
The Court further finds that all investigatory evidence in the alleged
delinquent conduct by [N.J.T.] had been completed by the State at the time
the State’s Petition Alleging Delinquent Conduct was filed on March 1, 2019.
On March 5, 2021 the juvenile court signed a waiver of jurisdiction and order of
transfer to criminal court, in which it made the following pertinent finding:
The Court [f]inds by a preponderance of the evidence that for a reason
beyond the control of the State, that it was not practicable to proceed in
juvenile court before [N.J.T.’s] 18th birthday; namely: that the State[’]s
Petition Alleging Delinquent Conduct was filed on March 1, 2019 and
[N.J.T.] requested a jury trial. After several resets due to [N.J.T.’s] requests
for an investigator, [N.J.T.’s] request for deposition and [N.J.T.’s] failure to
appear on 5/29/19, the State filed its Discretionary Transfer on March 5,
2020[,] because [N.J.T.] had turned 17. Moreover, it was at this time that
the Covid 19 pandemic ensued and thus since March, 2020, there have
been numerous resets outside of the State[’]s control due to the Covid
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pandemic. Given that Emergency Orders by both the State and County
have prevented in-court appearances and that the State by its own initative
has reset many cases to limit in person contact with outside persons to
prevent the spread of the Covid virus; the Court finds that the State did not
unduly delay the proceedings in this matter.
This accelerated appeal followed. See TEX. FAM. CODE. ANN. §§ 54.02(j),
56.01(c)(1)(A), (h), (h-1).
II. DISCUSSION
N.J.T. argues that the juvenile court abused its discretion in finding that the State
satisfied its burden under § 54.02(j)(4)(A), and thus the juvenile court lacked jurisdiction
to transfer the case to criminal district court. See id. § 54.02(j)(4)(A).
A. Standard of Review
We evaluate the trial court’s findings of fact under traditional sufficiency of the
evidence principles in reviewing a discretionary transfer. In re A.M., 577 S.W.3d 653, 658
(Tex. App.—Houston [1st Dist.] 2019, pet. granted); see also In re D.J.M., No. 03-18-
000476-CV, 2019 WL 190535, at *2 (Tex. App.—Austin January 14, 2019, no pet.) (mem.
op.). “In reviewing legal sufficiency of the evidence in a juvenile court transfer case, ‘we
view the evidence in the light most favorable to the court’s findings and determine whether
there is any evidence to support such findings.’” In re J.C.W.G., 613 S.W.3d 560, 569
(Tex. App.—San Antonio 2020, no pet.) (quoting Faisst v. State, 105 S.W.3d 8, 12 (Tex.
App.—Tyler 2003, no pet.)); see also In re M.G., No. 13-18-00294-CV, 2018 WL 6241036,
at *4 (Tex. App.—Corpus Christi–Edinburg November 29, 2018, no pet.) (mem. op.). The
no evidence challenge fails if there is more than a scintilla of evidence to support the
finding. See In re J.C.W.G., 613 S.W.3d at 569. “Under a factual sufficiency challenge,
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we consider all the evidence presented to determine if the court’s finding is so against the
great weight and preponderance of the evidence as to be clearly wrong or unjust.” In re
A.M., 577 S.W.3d at 659; see also In re M.G., 2018 WL 6241036, at *4.
“If the findings of the juvenile court are supported by legally and factually sufficient
proof, then we review the ultimate decision to waive under an abuse of discretion
standard.” See In re A.M., 577 S.W.3d at 659; see also Collins v. State, 516 S.W.3d 504,
520 (Tex. App.—Beaumont 2017, pet denied); In re B.W.K., No. 11-20-00238-CV, 2021
WL 1421536, at *2 (Tex. App.—Eastland Apr. 15, 2021, no pet.) (mem. op.). A court
abuses its discretion if it acts without reference to any guiding rules and principles. See
In re Nat’l Lloyds Ins., 507 S.W.3d 219, 226 (Tex. 2016). An abuse of discretion does not
occur when a trial court bases its decisions on conflicting evidence. See In re B.N.F., 120
S.W.3d 873, 877 (Tex. App.—Fort Worth 2003, no pet.).
B. Applicable Law
The Legislature has granted courts designated as juvenile courts with original and
exclusive jurisdiction over juvenile proceedings. See TEX. FAM. CODE ANN. § 51.04; Ex
parte Thomas, 623 S.W.3d 370, 376 (Tex. Crim. App. 2021); see also McKaine v. State,
170 S.W.3d 285, 288 (Tex. App.—Corpus Christi–Edinburg 2005, no pet.). Under certain
conditions, a juvenile court may waive its exclusive original jurisdiction and transfer the
proceeding to a district court for criminal prosecution. See TEX. FAM. CODE ANN.
§ 54.02(a), (j); In re A.M., 577 S.W.3d at 657–58.
Once a juvenile turns eighteen years old, the juvenile court’s jurisdiction is limited
to either dismissing the case or transferring the case to criminal district court. See In re
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N.J.A., 997 S.W.2d 554, 556 (Tex. 1999); see also In re A.M.V., No. 13-17-00317-CV,
2017 WL 4987146, at *1 (Tex. App.—Corpus Christi–Edinburg November 2, 2017, no
pet.) (mem. op.). “The transfer of a juvenile offender from juvenile court to criminal court
for prosecution as an adult should be regarded as the exception, not the rule . . . .” Ex
parte Thomas, 623 S.W.3d at 376. For a juvenile court to validly waive jurisdiction and
transfer a case to a criminal court, it must satisfy the terms of the statute. Id.
Section 54.02(j) governs the waiver of a juvenile court’s exclusive original
jurisdiction and transfer to criminal district court where the juvenile is eighteen years old
at the time of the transfer hearing. 5 See TEX. FAM. CODE ANN. 54.02(j); In re J.C.W.G.,
613 S.W.3d at 568 (“[S]ection 54.02(j) provides for transfer of a case from juvenile court
to criminal court if certain requirements are met and the defendant is at least [18] years
old.”); see also In re K.T.S., No. 01-18-00778-CV, 2018 WL 6318515, at *7 (Tex. App.—
Houston [1st Dist.] December 4, 2018, no pet.) (mem. op.). Specifically, “[§] 54.02(j)(4)(A)
5 Section 54.02(j) of the Texas Family Code has five parts, but since N.J.T. raises an issue with
only one sub-subsection, namely § 54.02(j)(4)(A), we include only that sub-subsection within the body of
this memorandum opinion. See TEX. FAM. CODE ANN. § 54.02(j)(4)(A). Nonetheless, the pertinent part of
§ 54.02(j) provides as follows:
The juvenile court may waive its exclusive jurisdiction and transfer a person to the
appropriate district court or criminal district court for criminal proecedings if: (1) the person
is 18 years of age or older; (2) the person was: . . . (B) 14 years of age or older and under
17 years of age at the time the person is alleged to have committed an aggravated
controlled substance felony or a felony of the first degree other than an offense under
Section 19.02, Penal Code; [or] (C) 15 years of age or older and under 17 years of age at
the time the person is alleged to have committed a felony of the second or third degree or
a state jail felony; (3) no adjudication concerning the alleged offense has been made or no
adjudication hearing concerning the offense has been conducted; (4) the juvenile court
finds from a preponderance of the evidence that: (A) for a reason beyond the control of the
state it was not practicable to proceed in juvenile court before the 18th birthday of the
person; . . . and (5) the juvenile court determines that there is probable cause to believe
that the child before the court committed the offense alleged.
Id. § 54.02(j).
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requires the State to show ‘that for a reason beyond the control of the state it was not
practicable to proceed in juvenile court before the 18[th] birthday of the person.’” Moore
v. State, 532 S.W.3d 400, 403 (Tex. Crim. App. 2017) (quoting TEX. FAM. CODE ANN.
54.02(j)(4)(A)) (explaining that “[t]his is meant to limit the prosecution of an adult for an
act he committed as a juvenile if his case could reasonably have been dealt with when
he was still a juvenile.”).
C. Analysis
N.J.T. only challenges the juvenile court’s finding that “by a preponderance of the
evidence that for a reason beyond the control of the State, that it was not practicable to
proceed in juvenile court before [N.J.T.’s] 18th birthday[.]” N.J.T. argues the juvenile court
abused its discretion given the evidence before it, specifically: (1) the time span of the
case, (2) that the State proceeded with a different certification hearing during the Covid-
19 pandemic, (3) that the State had all investigatory evidence and reports needed to
proceed with the discretionary transfer hearing, and (4) the State requested several
resets.
1. Time Span of the Case
N.J.T. argues the State filed its petition alleging delinquent conduct on June 5,
2019, 6 and that over nine months passed until the State filed its petition for discretionary
transfer. N.J.T. further argues that the majority of this time was prior to the
commencement of the Covid-19 pandemic. Additionally, N.J.T. argues that on December
18, 2020, the State filed its first amended petition, and the hearing on the petition was
6 The supplemental clerk’s record in cause number 2019-DJV-00103-I reflects that the State filed
its petition for delinquent conduct on March 1, 2019.
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held on January 13, 2021. Lastly, in support of this argument, N.J.T. argues that the time
between when the State filed its first petition and the final hearing was over one and a
half years.
While the time period from the State’s petition alleging delinquent conduct to the
discretionary transfer hearing was longer than a year and a half, there is also evidence in
the record that N.J.T.’s prior defense counsel prior to Covid-19 attributed to the delay in
the case, as she filed a motion for continuance requesting more time to prepare and a
motion for authorization to secure an investigator approximately eight months after the
State’s petition was filed. Additionally, at the transfer hearing, the State argued that
N.J.T.’s prior defense counsel filed continuous motions for discovery and inspection. See
In re J.C.W.G., 613 S.W.3d at 567 (“[T]he State has no duty to prevent a defendant form
causing delay.”); see also In re L.M.B., No. 11-16-00241-CV, 2017 WL 253654, at *2
(Tex. App.—Eastland Jan. 6, 2017, no pet.) (mem. op.) (announcing its finding that “it
was not practicable to proceed in juvenile court before the 18th birthday [of appellant]”
and indicating “that it took into account the timing of the outcry, the court’s calendar, the
attorneys’ calendars, the motion for continuance, and ‘the time it takes to get an
evaluation done’”).
Additionally, also prior to Covid-19, the record shows that N.J.T. failed to appear
on May 29, 2019, resulting in a reset and N.J.T.’s trial counsel was unavailable on August
30, 2019, resulting in another reset. Lastly, the record shows that after the Covid-19
pandemic ensued there were two resets due to Covid-19. Thus, given that N.J.T.
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contributed to the delays coupled with the delays from Covid-19, we disagree with N.J.T.’s
time span argument as reasons that were within the control of the State.
2. Other Transfer Hearing
N.J.T. also argues that the State cannot use Covid-19 as an excuse because it
proceeded on another juvenile discretionary transfer hearing during the pandemic which
from inception took only a period of six months during the most restrictive months of the
pandemic. In support, N.J.T. points to the juvenile court’s finding that “[the juvenile court]
did proceed on other discretionary transfers, specifically [in another juvenile matter] on
June 10, 2020 where witnesses as in this case did appear or were available by video
testimony[]” while N.J.T.’s case remained pending. However, when the transfer hearing
in the other juvenile matter proceeded, the record reflects that the social study and
diagnostic study for N.J.T. had not yet been filed. Indeed, at the request of N.J.T., the
juvenile court made a specific finding that “[t]he Social Diagnostic Study on [N.J.T.] was
completed on August 28, 2020 prior to [N.J.T.’s] eighteenth birthday.” Thus, during the
time period that the State proceeded in the other juvenile matter, the State could not have
permissibly proceeded with a transfer hearing for N.J.T. given § 54.02(d)’s statutory
requirement of obtaining a complete diagnostic study prior to the hearing. See TEX. FAM.
CODE. ANN. § 54.02(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.”); McKaine, 170 S.W.3d at
289.
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Additionally, the State responds that the facts of the other juvenile matter are
distinguishable as the respondent in that matter was over the age of eighteen at the time
the petition against him was filed, which removes the requirement for a social and
diagnostic study allowing them to forego a statutory requirement. See In re A.M., 577
S.W.3d at 667 (“Section 54.02(d) establishes certain required steps for transfer under
Section 54.02(a) . . . .”); see also In re R.S., No. 11-19-00011-CV, 2019 WL 2557532, at
*3 (Tex. App.—Eastland June 20, 2019, no pet.) (mem. op.) (noting that a diagnostic
study was performed prior to the hearing but was not necessary because appellant was
over the age of eighteen). Therefore, given that the State could not have permissibly
proceeded with N.J.T.’s case until completion of the social study and diagnostic study,
we disagree that the State’s decision to proceed in a separate and distinguishable juvenile
matter was an impermissible delay by the State.
3. Investigation and Reports
N.J.T. next argues that (1) the juvenile court made a finding that “all investigatory
evidence in the alleged delinquent conduct by [N.J.T.] had been completed by the State
at the time the State’s petition alleging delinquent conduct was filed on March 1, 2019[,]”
(2) the State had all the evidence and witnesses to proceed with an adjudication hearing
prior to N.J.T.’s eighteenth birthday, and (3) at the moment the State had the behavorial
assessment report, the psychiatric evaluation, and social diagnostic study on August 28,
2020, it had all the necessary reports to request a setting and proceed with the
discretionary transfer hearing.
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N.J.T.’s first argument fails because the juvenile court’s finding that “[a]ll
investigatory evidence in the alleged delinquent conduct by [N.J.T.] had been completed
by the State at the time the State’s Petition Alleging Delinquent Conduct was filed on
March 1, 2019[,]” does not mean that the State must proceed with a transfer hearing as
of March 1, 2019, since it is a determination that is within the State’s discretion to pursue.
See TEX. FAM. CODE. ANN. §§ 53.04(a) (“If the preliminary investigation, required by
Section 53.01 of this code results in a determination that further proceedings are
authorized and warranted, a petition for an adjudication or transfer hearing of a child
alleged to have engaged in delinquent conduct or conduct indicating a need for
supervision may be made as promptly as practicable by a prosecuting attorney who has
knowledge of the facts alleged or is informed and believes that they are true.”); 54.02(d).
Additionally, the juvenile court as of March 1, 2019, had not yet ordered a diagnostic
study, social evulation, and full investigation of the child, his circumstances, and the
circumstances of the alleged offenses. See id. § 54.02(d).
With regards to N.J.T.’s second contention, while it may be correct that the State
had all the evidence and witnesses to proceed with an adjudication hearing prior to
N.J.T.’s eighteenth birthday, an adjudication hearing would have prevented the State from
moving forward with the discretionary transfer. See id. §§ 54.02(a)(2), (j)(3) (“The juvenile
court may waive its exclusive original jurisdiction and transfer a person to the appropriate
district court or criminal district court for criminal proceedings if: . . . no adjudication
concerning the alleged offense has been made or no adjudication hearing concerning the
offense has been conducted.”); 53.04(a). At the transfer hearing, the State stated “[t]here
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has been no adjudication hearing on this case since its inception.” Moreover, the juvenile
court made a finding that “[n]o adjucation hearing has been conducted concerning the
offenses alleged in the State’s Petition for Discretionary Transfer to Criminal Court.”
Lastly, in regards to N.J.T.’s final contention, a setting for the discretionary transfer
hearing was already set for October 7, 2020, which was due to Covid-19 as noted. See
generally, In re J.C.W.G., 613 S.W.3d at 567 (“The State is not responsible for court
delays, which can be described as exceptional circumstances.”). While the discretionary
transfer hearing was not held on October 7, 2020, the record does not reflect that the
State requested a reset or other delay during this short time period before N.J.T. turned
eighteen. Additionally, the State argued that it was interrupted by Covid-19, which the
juvenile court recognized during the hearing and in its transfer order. We thus disagree
with N.J.T.’s arguments related to the investigation and mental health reports because as
of March 1, 2019, the State did not have to proceed with a transfer hearing nor had it met
all of the statutory requirements to do so, an adjudication hearing would have prevented
the State from proceding with a discretionatary transfer, and a hearing was already set
for October 7, 2020 which was before N.J.T.’s eighteenth birthday.
4. Delays by the State
Lastly, N.J.T. argues that the juvenile court found that the “Petition for
Discretionary Transfer to Adult Criminal Court was re-set on several occasions at the
request of the State.” N.J.T. concedes that he was found to have delayed some of the
court proceedings but contends that because the juvenile court only found delays by his
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trial counsel to be an issue before the State filed its petition for discretionary transfer,
these delays were inconsequential.
We do not agree that N.J.T.’s delays were inconsequential because each day still
resulted in edging closer to his eighteenth birthday. See TEX. FAM. CODE ANN. §§ 54.02,
54.03; see also Macias v. State, No. 13-04-00027-CR, WL 2265075, at *1 (Tex. App.—
Corpus Christi–Edinburg August 9, 2007, no pet.) (mem. op., not designated for
publication) (“A proceeding to declare a juvenile a delinquent and a proceeding to waive
jurisdiction and certify the juvenile as an adult for criminal prosecution are separate and
distinct proceedings.”). Additionally, while N.J.T. appers to blame his delays on his prior
trial counsel, N.J.T. himself failed to appear on May 29, 2019, a finding made by the
juvenile court, resulting in an approximate two-month reset to July 31, 2019.
While the record shows that the State requested two resets, on May 27, 2020 and
on June 8, 2020, before N.J.T.’s eighteeth birthday, the record also shows an agreement
by N.J.T.’s counsel as to both, and such approximate 30-day delay was before the
diagnostic and social study had been filed. Additonally, while the record shows two delays
by the State which were without agreement, such delays were after N.J.T. turned
eighteen. See TEX. FAM. CODE ANN. § 54.02(j)(4)(A); see generally Collins, 516 S.W.3d at
520–21 (analyzing § 54.02(j)(4)(B) and concluding that delays after the appellant turned
eighteen are not relevant in reviewing the juvenile court’s findings with respect to the
County’s diligence). Thus, given that N.J.T. contributed to the delays, such delays were
not within the control of the state. Additionally, given that the State’s two delays before
N.J.T.’s eighteenth birthday, totaling approximately 30-days, occured before the
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diagnostic study and social study had been filed, such delays did not make it impracticable
to proceed before N.J.T.’s eighteenth birthday.
5. Summary
We find that the evidence offered by the State was more than a scintilla to support
the juvenile court’s finding that, for a reason beyond the control of the State, it was not
practicable to proceed in juvenile court by petition before N.J.T.’s eighteenth birthday.
See In re J.C.W.G., 613 S.W.3d at 569. We also find that the challenged finding of the
juvenile court was not against the great weight of the evidence. See In re A.M., 577
S.W.3d at 659; see also In re M.G., 2018 WL 6241036, at *5. Therefore, we conclude that
the juvenile court did not abuse its discretion when it entered the transfer order, and we
overrule N.J.T.’s sole issue.
III. CONCLUSION
We affirm the judgment of the juvenile court.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
16th day of September, 2021.
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