in the Matter of C. R. ( 2018 )

Opinion issued August 31, 2018
In The
Court of Appeals
For The
First District of Texas
———————————
NO. 01-18-00185-CV
NO. 01-18-00186-CV
NO. 01-18-00187-CV
NO. 01-18-00188-CV
———————————
IN THE MATTER OF C.R., Appellant
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case Nos. 2017-01303J,
2017-01304J, 2017-01768J, & 2017-01769J
OPINION
The juvenile court waived jurisdiction over the appellant, C.R., with respect
to charges of capital murder, aggravated assault, and aggravated robbery. A fourth
charge of evading detention was dismissed in the trial court. Appellant was ordered
transferred to the criminal district court for further criminal proceedings.
Appellant challenges the legal and factual sufficiency of the evidence to
support the juvenile court’s findings of probable cause that he committed the
alleged offenses and that the welfare of the community requires criminal
proceedings. See TEX. FAM. CODE § 54.02(a). We dismiss the appeal taken from
the nonsuited charge. With respect to the remaining charges, we conclude that the
juvenile court’s determinations were supported by legally and factually sufficient
evidence, and the court did not abuse its discretion by certifying appellant to stand
trial as an adult. Accordingly, we affirm.
Background
In March 2017, the State filed petitions in Harris County juvenile court
alleging that appellant C.R., at age 16, engaged in delinquent conduct by
committing aggravated robbery with a deadly weapon,1 evading detention,2 capital
murder,3 and aggravated assault with a deadly weapon.4 Pursuant to
section 54.02(a) of the Family Code, the State later petitioned the juvenile court to
1
Trial court case no. 2017-01303J; appellate case no. 01-18-00185-CV.
2
Trial court case no. 2017-01304J; appellate case no. 01-18-00186-CV.
3
Trial court case no. 2017-01768J; appellate case no. 01-18-00187-CV.
4
Trial court case no. 2017-01769J; appellate case no. 01-18-00188-CV.
2
waive its exclusive original jurisdiction and transfer appellant to the criminal court
for further proceedings on each of the charges, excluding evading detention. The
juvenile court ordered a certification examination, which was conducted prior to
the certification hearing.
At the hearing, the trial judge took judicial notice of the court’s file for each
of the three cause numbers for which the State sought certification. The State
called Harris County Sheriff’s Office Detective J. Roberts as a witness. In
January 2017, Detective Roberts was notified of a reported shooting in a movie
theater parking lot. Two males, Daniel Gerding and C.T., had sustained gunshot
wounds. Gerding had been shot twice in the back, and he later died of his injuries.
The autopsy report on Gerding’s body noted that he had two gunshot wounds to his
back, each with an exit wound through the chest. It identified the cause of
Gerding’s death as gunshot wounds to the chest, and homicide as the manner of
death.
C.T. had been shot in the face. Detective Roberts testified that a bullet
passed through C.T.’s left jaw socket and exited through his right jaw socket. C.T.
survived his injuries. Photographs of his injuries were admitted into evidence.
Detective Roberts did not have an opportunity to speak with Gerding before
he passed away. Both Gerding and C.T. were transported to the hospital before
Detective Roberts arrived at the movie theater. However, Detective Roberts
3
testified that responding officers informed him that Gerding stated at the scene that
he and C.T. were robbed in his car by a Hispanic male and female. The
certification evaluation report, which was admitted into evidence, stated that
Gerding had further indicated that he was shot during a drug transaction that “went
bad.”
As part of his investigation, Detective Roberts inspected a car that was
parked in the movie theater parking lot. He testified that bags of marijuana were
scattered outside of the car, and the way the marijuana was packaged indicated that
it may have been intended for sale. He further testified that the “unorganized”
placement of the bags suggested that “some type of incident” occurred at the car.
Two mobile phones, which were later determined to belong to Gerding and C.T.,
respectively, were collected from inside and around the car. Roberts determined
that the car was registered to Gerding’s father.
Once C.T. recovered from his injuries, he gave a statement to Detective
Roberts. C.T. stated that on the night of the shooting, Gerding arranged to meet a
“Hispanic female” in the movie theater parking lot. C.T. and Gerding were sitting
in Gerding’s parked car when the female arrived. She was accompanied by a
Hispanic male, and they both got into the back seat of Gerding’s car. C.T.
informed Detective Roberts that there was some conversation between the others in
4
the car, and Gerding abruptly attempted to exit the car. The male then shot Gerding
twice in the back. C.T. turned around, and the male shot him in the face.
Detective Roberts obtained telephone records for the mobile phones that
were recovered at the scene of the shooting. The telephone number associated with
the last incoming calls to and outgoing calls from Gerding’s phone prior to the
shooting was registered to the father of a local high school student, F.D. Detective
Roberts met with F.D. at her school. She told him that on the night of the shooting,
she had met with appellant at a party. He asked her to set up a meeting with a drug
dealer so he could rob the person. F.D. sent text messages to several people who
she knew sold drugs, including Gerding, who was the first to respond to the text
message. F.D. asked him for marijuana, and they agreed to meet at the movie
theater.
F.D. told Detective Roberts that appellant drove her to the theater in a white
pickup truck. When they arrived, appellant parked on the side of the building. They
both got into the back seat of Gerding’s car, which already was parked at the
theater. F.D. stated that Gerding showed them a gram of marijuana, and appellant
grew impatient because it was not the amount they had agreed upon. Appellant
then displayed a semi-automatic handgun. Gerding tried to leave the car, and
appellant shot him twice. Then appellant shot C.T. in the face.
5
F.D. stated that she and appellant ran back to the truck. Appellant told F.D.
that he had dropped the clip from his weapon. He also asked for her mobile phone,
which he broke and later threw out of the car. He told her not to tell anyone about
what happened. F.D. told Detective Roberts that appellant drove to a gas station
and parked at a pump. She explained that appellant got out of the truck and walked
toward the store at the gas station. He went back to the truck, and he changed his
clothing before walking back toward the store and going inside. They left the gas
station and went to a party. Then appellant dropped her off at home.
Based on the name, age, and description provided by F.D., Detective
Roberts obtained a photograph of appellant. He showed the picture to F.D., and she
confirmed that he was the person who shot Gerding.
Detective Roberts obtained surveillance video footage from the gas station,
which he believed corroborated F.D.’s statement. He stated that the video showed a
white pickup truck pulling up to the pump. A male got out of the truck, walked
toward the store, and then walked back to the truck before entering the store. The
summary of the offense included in the certification evaluation report stated that
the male entered the store wearing different-colored shoes than when he initially
exited the truck. Although he could not positively identify appellant in the video,
Detective Roberts stated that the footage of the male entering the store “appears” to
fit appellant’s description. The video was admitted into evidence.
6
Detective Roberts created a photographic lineup including a picture of
appellant, and he showed it to C.T., who had gotten a full view of the shooter’s
face immediately before he was shot. He was “55 to 60 percent” certain that
appellant was the person who shot him.
During Detective Roberts’s investigation, appellant was arrested in
connection with a carjacking that occurred on March 1, 2017. Based on Detective
Roberts’s testimony and information contained in the certification-evaluation
report, the State presented evidence that the complainant in that case, Rene
Venezuela, reported that he left his truck running while he went into his house. As
he returned to his truck, he saw a Hispanic male with short hair sitting in the
driver’s seat. The male was wearing a white shirt, red pants, and a mask. When the
Hispanic male saw Venezuela, he pointed a gun at him and told him to “get in the
car.” Venezuela ran back into his house, and the male drove away in the truck.
Venezuela had left his mobile phone in his truck, and the police located the
truck by tracking the phone. Officers attempted to stop the truck, and the driver led
them on a high-speed chase for approximately ten minutes. The truck ran over a
curb and crashed into a retaining wall. Appellant, who had been driving the truck,
then attempted to flee on foot before he was apprehended and arrested.
Police recovered a backpack from the truck. It contained, among other items,
clothing matching the description given by Venezuela and pictures of appellant.
7
Venezuela identified the clothing as that which had been worn by the person who
stole his truck. Police also recovered a handgun from the truck. Detective Roberts
testified that ballistics testing of the gun demonstrated that it was the same gun
used in the January shooting of Gerding and C.T.
Appellant was charged with capital murder of Gerding and aggravated
assault of C.T. He also was charged with the aggravated robbery of Venezuela.
F.D. was 17 at the time of the shooting, and she was charged, as an adult, with
capital murder related to Gerding’s death.
The State also called C. Williams, an agency representative for the Harris
County Juvenile Probation Department. Williams testified about appellant’s history
with the Juvenile Probation Department. Appellant was first placed on probation in
January 2013, and he spent one year in the Harris County Youth Village. In
March 2014 he was placed on probation for criminal mischief. In September 2014
he appeared in court on charges of assaulting and harassing a public servant. He
was placed in the custody of his mother under the “intensive supervision program.”
Appellant again appeared in court in January 2015 for burglary of a habitation and
violation of probation, and he was placed in the Juvenile Probation Department’s
custody at the Harris County Leadership Academy. Then, in September 2015, he
was charged with violating his probation and burglary of a vehicle. Williams
testified that the burglary charge was dismissed, and appellant was committed to
8
the Texas Juvenile Justice Department for the probation violation. Appellant also
had been to the Burnett-Bayland Rehabilitation Center. Williams stated that
appellant was on parole when he was arrested on the currently pending charges.
The certification evaluation showed that appellant had seven prior referrals to the
Juvenile Probation Department related to criminal activity.
Williams testified that since being placed in juvenile detention in connection
with the charges now pending against him, appellant had 18 disciplinary
infractions. In her opinion, the Juvenile Probation Department already had done
everything it could using the resources available to it to rehabilitate appellant. She
did not believe there was any other placement for appellant within the Juvenile
Probation Department.
The certification evaluation report offered into evidence included results of a
joint psychological and psychiatric evaluation conducted by Dr. Alexandra Tellez
and Dr. Linda Wittig. The evaluation consisted of many tests, including a Risk
Sophistication Treatment Inventory (RSTI), which is used to assess juvenile
offenders in the areas of risk of dangerousness, sophistication and maturity, and
amenability to treatment. C.R.’s RSTI results in the “Planned & Extensive
Criminality” category were in the “High” range. Based on the results of the RSTI
and cognitive and clinical assessments, Dr. Tellez determined that C.R. exhibited a
“high level of criminally based sophistication and dangerousness” compared to
9
other “delinquent youth” his age and an “average” level of maturity in comparison
to other delinquent youth his age. A summary included in the report stated that the
test results indicated that C.R. “exhibited more autonomous behavior used to plan
crimes and appears to have a more ingrained criminological lifestyle.”
In making her assessment, Dr. Tellez noted that although C.R. tested in the
high range for “Planned and Extensive Criminality” even when the present
offenses were excluded, the allegations relating to the pending charges presented
an additional factor of premeditation. His “solo” participation in the aggravated
robbery suggested that he took a “leadership role” in committing crimes.
Appellant did not call any witnesses. He argued that the State relied solely
on witness testimony in the capital-murder and aggravated-assault cases, and it had
merely established “possible” cause, but not probable cause. He noted that the
State had a “video, sketchy photo array, 55 to 60 percent positive.” He conceded
that the State had shown he fled from a motor vehicle.
The juvenile court found that there was probable cause to believe that
appellant committed capital murder, aggravated assault, and aggravated robbery, as
alleged in the State’s petitions. The court additionally found that based on the
seriousness of the offenses alleged and appellant’s background, the welfare of the
community required criminal proceedings. The court certified appellant as an
adult, and it granted the State’s motion to waive jurisdiction in the capital-murder,
10
aggravated-assault, and aggravated-robbery cases. The evading-detention charge
was nonsuited on a motion by the State, and the court ordered that the remaining
cases be transferred to criminal district court.
In all four cases, including the evading-detention case that was nonsuited by
the State, appellant filed a notice of appeal from the juvenile court’s order waiving
jurisdiction. See TEX. FAM. CODE § 56.01(c)(1)(A). Because there is no appealable
order in the dismissed, now-moot evading-detention case, we dismiss appellate
case no. 01-18-00186-CV for want of jurisdiction.
Analysis
In two issues, appellant contends that the juvenile court abused its discretion
by waiving jurisdiction because the evidence was legally and factually insufficient
to support transferring the cases to a criminal district court. In his first issue, he
argues that the evidence was insufficient to support the determination of probable
cause that he committed the offenses. See TEX. FAM. CODE § 54.02(a)(3). In his
second issue, he challenges the sufficiency of the evidence to support the
determination that because of the seriousness of the offenses alleged or his
background, the welfare of the community required criminal proceedings. See id.
§ 54.02(a)(3), (f).
The juvenile courts have exclusive original jurisdiction over proceedings
involving “delinquent conduct” by children between 10 and 17 years old. Id.
11
§§ 51.02(2)(A), 51.04(a). When a child engages in “conduct, other than a traffic
offense, that violates a penal law of this state or of the United States punishable by
imprisonment or by confinement in jail,” it is considered “delinquent conduct.”
Id. § 51.03(a)(1). Under circumstances specified by statute, the juvenile court may
exercise its discretion to waive its exclusive jurisdiction and transfer a child to the
criminal district court for criminal proceedings. See id. § 54.02; Moon v. State, 451
S.W.3d 28, 38 (Tex. Crim. App. 2014).
One circumstance in which a juvenile court may waive its exclusive
jurisdiction is when no adjudication hearing has been conducted concerning a
charge that a child committed, at the age of 14 years old or older, an eligible felony
offense, including a capital felony. TEX. FAM. CODE § 54.02(a)(2)(A). Before it
may properly exercise its discretion to transfer the child for criminal proceedings
in a district court, a juvenile court must determine, after a full investigation and a
hearing, “that there is probable cause to believe that the child . . . committed the
offense alleged and that because of the seriousness of the offense alleged or the
background of the child the welfare of the community requires criminal
proceedings.” Id. § 54.02(a)(3); see also Moon, 451 S.W.3d at 46. The juvenile
court must state specifically in the order its reasons for waiver. TEX. FAM.
CODE § 54.02(h).
12
On appeal, we review the legal and factual sufficiency of the evidence to
support the juvenile court’s specific factual finding. See Moon, 451 S.W.3d at 50.
Our review is limited to the facts that the juvenile court expressly relied upon in its
transfer order. Id.
In reviewing the legal sufficiency of the evidence, we view the evidence in
the light most favorable to the findings and disregard contrary evidence unless a
reasonable factfinder could not reject it. In re S.G.R., 496 S.W.3d 235, 239 (Tex.
App.—Houston [1st Dist.] 2016, no pet.) (citing Moon v. State, 410 S.W.3d 366,
371 (Tex. App.—Houston [1st Dist.] 2013), aff’d, 451 S.W.3d 28 (Tex. Crim. App.
2014)). If there is more than a scintilla of evidence to support the finding, then the
evidence is legally sufficient. Id. Under a factual sufficiency review, we consider
all of the evidence presented to determine if the juvenile court’s finding conflicts
with the great weight and preponderance of the evidence so as to be clearly wrong
or unjust. Id.
I. Probable cause that the child committed the offenses alleged
Appellant argues that the evidence is legally and factually insufficient to
support the juvenile court’s determinations of probable cause to believe that he
committed capital murder, aggravated assault, or aggravated robbery. He contends
that the State relied on insufficiently corroborated accomplice testimony to
establish that he was involved in the robbery and shootings of Gerding and C.T. He
13
additionally asserts that the evidence related to the aggravated robbery of
Venezuela established only that he was guilty of unauthorized use of a vehicle.
In evaluating a determination of probable cause, we consider whether there
are sufficient facts and circumstances to support a prudent person’s belief that the
accused child committed the offense. See, e.g., In re J.G., 495 S.W.3d 354, 374
(Tex. App.—Houston [1st Dist.] 2016, pet. denied). The probable-cause standard
“requires more than mere suspicion but less evidence than needed to support a
conviction or support a finding by a preponderance of the evidence.” In re C.M.M.,
503 S.W.3d 692, 702 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (citing
Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997)). Courts apply a
“totality-of-the-circumstances” analysis to determine probable cause. Manuel v.
State, 481 S.W.3d 278, 283 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d)
(citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).
As relevant to this case, a person commits capital murder if he intentionally
causes the death of an individual in the course of committing or attempting to
commit robbery. TEX. PENAL CODE §§ 19.02(b)(1), 19.03(a)(2), 29.02; see
Nickerson v. State, 478 S.W.3d 744, 755–56 (Tex. App.—Houston [1st Dist.]
2015, no pet.). A person commits assault if he intentionally, knowingly, or
recklessly causes bodily injury to another. TEX. PENAL CODE § 22.01(a)(1). Using
or displaying a deadly weapon during the commission of an assault elevates the
14
offense to aggravated assault. Id. § 22.02(a)(2). A firearm is a deadly weapon. See
id. § 1.07(a)(17).
In reaching its probable-cause determination in this case, the juvenile court
considered, among other things, the testimony and documentary evidence admitted
at the certification hearing and the court’s files for each separate cause.
With respect to the capital-murder and aggravated-assault charges, the
evidence showed that Gerding and C.T. were shot in a movie theater parking lot in
January 2017. Gerding, who later died from his injuries, told responding officers
that he and C.T. had been robbed by a Hispanic male and female. Gerding’s
autopsy report was admitted into evidence. C.T. was shot in the face. He
underwent surgery and survived the shooting. Photographs of C.T.’s injuries were
admitted into evidence, and Detective Roberts described them. Detective Roberts
also testified that mobile phones found at the location of the shooting led them to
interview F.D., who reported that appellant asked her to arrange the meeting with
Gerding for the purpose of committing a robbery. During the meeting, appellant
shot Gerding and C.T. F.D. identified appellant by name and in a photograph, and
she provided details about their actions after the shooting. Detective Roberts
testified that video surveillance corroborated F.D.’s statements about events
following the shooting, and the video was admitted into evidence. C.T. also
identified appellant as the shooter from a photographic lineup. Two months after
15
the shooting, appellant was arrested after he fled from a stolen truck, and the
firearm used to kill Gerding was found in the truck.
Appellant argues that the evidence of probable cause that he committed
capital murder and aggravated assault is insufficient because it relies on
information from F.D., an accomplice to those crimes. In support of this argument,
appellant relies on article 38.14 of the Code of Criminal Procedure, which provides
that a conviction “cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
committed.” However, the objective of a certification hearing is not to determine
ultimate guilt or innocence, but rather to determine if there is probable cause to
believe the child committed the offense alleged. See TEX. FAM.
CODE § 54.02(a)(3); see also J.G., 495 S.W.3d at 363. Appellant has presented no
authority that the juvenile court is prohibited from considering evidence obtained
from an accomplice in the context of a transfer decision. Accord In re J.D.H.,
No. 01-17-00889-CV, 2018 WL 2107244, at *9 (Tex. App.—Houston [1st Dist.]
May 8, 2018, no pet.) (mem. op.).
Further, F.D.’s statements were corroborated by other evidence which
connected appellant to the crimes. C.T. identified appellant as the shooter with 55
to 60 percent confidence. See In re C.M.G., 905 S.W.2d 56, 58–59 (Tex. App.—
Austin 1995, no writ) (police officer’s testimony that fleeing suspect “looked like”
16
the juvenile tended to connect him to the offense alleged and was sufficient to
corroborate accomplice witness testimony; positive identification was not required
for sufficient corroboration). Additionally, two months after the shooting, appellant
was found in possession of the murder weapon.
After considering the totality of the circumstances, and viewing the evidence
in the light most favorable to the juvenile court’s finding, we conclude that there is
more than a scintilla of evidence to support the court’s implied determination that a
prudent person would be justified in believing that appellant committed capital
murder and aggravated assault. The evidence is therefore legally sufficient to
support the probable-cause determination. The evidence showed that C.T. was only
“55-60%” confident in his identification of appellant. Further, Detective Roberts
testified that he could not positively identify appellant from the surveillance video.
Although a reasonable factfinder could give less weight to that evidence, the
court’s determination of probable cause did not conflict with the great weight and
preponderance of the evidence so as to be clearly wrong and unjust.
Appellant also challenges the juvenile court’s finding of probable cause as to
the aggravated robbery offense. He contends that the evidence showed only that he
was guilty of unauthorized possession of a stolen truck, and it did not establish his
identity as the person who robbed the truck’s owner, Venezuela.
17
A person commits robbery when, in the course of committing theft, and with
intent to obtain or maintain control of the property, he “intentionally or knowingly
threatens or places another person in fear of imminent bodily injury or death.” TEX.
PENAL CODE § 29.02(a)(2). “Theft” is defined as the unlawful appropriation of
property with intent to deprive the owner of the property. Id. § 31.03(a). The
circumstances that elevate robbery to aggravated robbery include using or
exhibiting a deadly weapon in the course of committing robbery. Id. § 29.03(a)(2).
The evidence showed that Venezuela saw a male wearing a white shirt, red
pants, and a mask in his truck. He also reported that the person who stole his truck
pointed a gun at him. Police located the truck on the same day as the robbery.
Appellant was driving the truck, and when police attempted to stop him, he fled. A
gun, photos of appellant, and clothing matching the description given by
Venezuela were recovered from the truck.
Appellant contends that because the offender wore a mask, and Venezuela’s
description was very general, the evidence did not establish that he stole the truck,
and the recovery of the stolen truck proves only that he is guilty of unauthorized
use of a motor vehicle. Possession of stolen items, without more, is not sufficient
to establish guilt in a prosecution of burglary. See Grant v. State, 566 S.W.2d 954,
956 (Tex. Crim. App. 1978). But the fact that appellant led the police on a high-
speed chase when officers attempted to conduct a traffic stop of the stolen vehicle
18
is additional circumstantial evidence of his guilt. See Clayton v. State, 235 S.W.3d
772, 780 (Tex. Crim. App. 2007) (a factfinder may draw an inference of guilt from
the circumstance of flight); see also Guillory v. State, 877 S.W.2d 71, 74 (Tex.
App.—Houston [1st Dist.] 1994, writ ref’d) (flight from the scene may be
combined with other facts to show that the accused was a party to the offense). No
evidence was presented to contradict the State’s evidence. Considering all of the
evidence, we conclude that the juvenile court’s determination did not conflict with
the great weight and preponderance of the evidence. The court’s determination of
probable cause that appellant committed aggravated robbery was supported by
legally and factually sufficient evidence.
II. Welfare of the community
In evaluating whether the welfare of the community requires criminal rather
than juvenile proceedings, the juvenile court considers the following non-exclusive
statutory factors:
(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 sophistication and maturity of the child;
(3) the record and previous history of the child; and
(4) 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.
19
TEX. FAM. CODE § 54.02(f). These factors assist the juvenile court in balancing the
potential danger that the juvenile poses to the public against his amenability to
treatment. Moon, 451 S.W.3d at 38. The State bears the burden to prove by a
preponderance of the evidence that because of the seriousness of the offense
alleged or the background of the child, or both, the welfare of the community
requires transfer of jurisdiction for criminal proceedings, and a waiver of the
juvenile court’s otherwise-exclusive jurisdiction is therefore appropriate. Id. at 40–
41.
A two-pronged analysis is used to determine if the juvenile court abused its
discretion by waiving its jurisdiction and transferring a case to juvenile court. Id. at
47. First, we analyze the juvenile court’s specific findings of fact, as they relate to
the section 54.02(f) factors, under a “traditional sufficiency of the evidence
review.” Id. We then review the juvenile court’s ultimate waiver decision for an
abuse of discretion. Id. We consider whether, in light of our own analysis of the
sufficiency of the evidence to support the section 54.02(f) factors and any other
relevant evidence, the juvenile court’s decision reflects a reasonably principled
application of the statutory criteria or was essentially arbitrary and made without
reference to guiding rules and principles. Id. The juvenile court is not required to
find that every section 54.02(f) factor weighs in favor of transfer to justify its
decision. Id.
20
A. Offense against person or property
The juvenile court found that there was probable cause to believe that
appellant committed offenses against the person and the property of another, and it
found that the offenses committed against a person caused this factor to weigh
more heavily in favor of discretionary transfer.
The court also made findings regarding the particular facts of the offenses,
and it found specific aspects of the alleged offenses and appellant’s alleged
participation in them to be “particularly egregious and aggravating.” With respect
to the capital-murder and aggravated-assault offenses, the court found that: F.D.
told officers that appellant asked her to arrange a meeting with Gerding, and
appellant shot Gerding and C.T.; Gerding told officers that a Hispanic male
“attempted to rob” him and C.T.; Gerding sustained “gunshot wounds to the
chest,” and he “died because of his injuries”; and C.T. suffered from a “gunshot
wound to the face.” With respect to the aggravated robbery offense, the juvenile
court found that a pistol was used to threaten Venezuela; police located
Venezuela’s stolen truck and attempted to stop the vehicle; the suspect, later
identified as appellant, “fled in the vehicle” and “evaded for approximately
10 minutes” before he ran the truck over a curb and “crashed into the side of a
retaining wall”; a gun was found in the truck; and testing revealed that it was the
“same gun that fired the bullets” which killed Gerding.
21
Appellant does not challenge the juvenile court’s finding that the crimes
were committed against the person and property of another. Instead, he argues that
“there was a significant lack of direct reliable proof” of his involvement in any of
the three offenses presented to the court. As discussed in our analysis of the
juvenile court’s probable-cause determination, the record supports the findings that
appellant was involved in each of the offenses. We thus conclude that legally and
factually sufficient evidence supported the juvenile court’s determination that the
offenses were committed against a person.
B. Sophistication and maturity
After considering the sophistication and maturity of appellant, the juvenile
court found that the evidence weighed in support of discretionary transfer. In the
transfer order, the court noted that appellant “is currently 17 years of age.” It found
that each of the three alleged offenses involved “orchestrated attacks on the
victims, as well as planning.” In support of this finding, the court noted F.D.’s
statement that appellant asked her to arrange a meeting with a drug dealer so he
could rob someone.
The juvenile court also noted specific information from the certification
evaluation report in support of its finding, including that appellant did not exhibit
any significant attention or concentration deficits, and his mother stated that he had
22
always done well in school. The court found that appellant had earned his GED in
August 2016.
These findings are supported by the record. The record contained a
stipulation of appellant’s date of birth, Detective Roberts’s testimony about F.D.’s
statements to police, and a copy of the certification evaluation report, which also
described F.D.’s statements to police about appellant’s criminal involvement
related to the capital-murder and aggravated-assault charges. The results of
appellant’s RSTI, also contained in the certification evaluation report, indicated
that he tested in the high range for “Planned and Extensive Criminality,” and
Dr. Tellez determined that the allegations included a premeditation factor.
Appellant challenges certain findings contained in Dr. Tellez’s
psychological evaluation. Specifically, he asserts that a number of prior offenses
relied upon in the evaluation were committed when he was 13 or 14 years old.
Additionally, he argues that the record established that Dr. Tellez determined that
his sophistication and maturity level was average compared with others his age.
Appellant contends that such a finding weighs against certification because the
average sophistication and maturity level of a 16 year old is “not high.” He also
argues that Dr. Tellez’s determination that he presented a “moderately high” risk
for recidivism was predicated on him not receiving treatment, but he only could
receive treatment within the juvenile justice system. Additionally, he asserts that
23
the determination regarding his risk for recidivism “is nothing more than a mere
conclusion.”
The juvenile court did not make any specific findings regarding this
challenged evidence in its order. Appellant does not challenge the specific findings
that do appear in the juvenile court’s order, including that he did well in school,
received his GED, and his most recent offenses involved orchestrated attacks.
Considering all of the evidence presented, we conclude that the juvenile court’s
finding that appellant exhibited a level of sophistication and maturity that weighed
in favor of transfer was supported by more than a scintilla of evidence and did not
conflict with the great weight and preponderance of the evidence so as to be clearly
wrong or unjust. See S.G.R., 496 S.W.3d at 239.
C. Record and previous history
The juvenile court found that appellant’s “record and previous history”
weighed in support of discretionary transfer. The court found that appellant had a
“lengthy history” of referrals to the Harris County Juvenile Probation Department,
which started when he was 12 years old. In support of its findings, the court
described the circumstances leading to five prior referrals to the Juvenile Probation
Department, including an assault on his mother, criminal mischief, assault and
harassment of a public servant, and burglary of a habitation. The order also noted
that appellant had been placed in the Harris County Youth Village, the Burnett-
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Bayland Rehabilitation Center, and the Harris County Leadership Academy. The
court found that after the referral for burglary of a habitation, appellant violated his
probation, and he was transferred to the Texas Juvenile Justice Department. It
noted that appellant was released in November 2016, and he was on parole when
he allegedly committed capital murder and aggravated assault.
The juvenile court further found that appellant admitted to using cannabis,
“kush,” and cocaine. Specifically, appellant had started using cannabis at the age of
seven, and he continued using it weekly until his arrest for the offenses in this case.
The court also found that appellant had the benefit of attending two
substance-abuse treatment programs, first in 2013 at the Harris County Youth
Village and again in 2015 while at the Harris County Leadership Academy. These
findings are supported by the reports and records admitted into evidence, as well as
testimony at the certification hearing.
Appellant does not contend that the court’s factual findings about his record
and prior history are inaccurate or otherwise unsupported by the record. He argues
that because only two of his prior referrals related to violent offenses, the findings
contained in the juvenile court’s order “are not so serious as to make this the
exceptional case where transfer to the criminal court is justified.”
Section 54.02(f)(3) requires the juvenile court to consider the record and previous
history of the child; it does not limit the court’s consideration to violent offenses.
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Appellant’s previous record as detailed in the court’s order, considered in light of
the pending charges, shows an escalation in violent criminal behavior.
Accordingly, we conclude that the juvenile court’s findings with respect to this
factor were supported by legally and factually sufficient evidence.
D. Adequate protection of the public and likelihood of rehabilitation
The fourth statutory factor relates to “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 § 54.02(f)(4). The juvenile court found that the evidence weighed in support
of discretionary transfer under this factor.
In its order, the juvenile court found that while placed in a juvenile detention
center, appellant had been involved in 18 disciplinary violations between
May 2017 and February 2018, including failing to follow staff instructions and
exhibiting behaviors that “pose a threat to the safety and security of the facility.”
The court found that based on the “egregious and aggravated” nature of the crimes
alleged in this case, the reports, and appellant’s prior referral history, he would not
be amenable to the court’s efforts to rehabilitate him. The court found that
appellant’s criminal acts were “escalating in nature,” and it determined that “there
is nowhere else in the juvenile system” to send appellant “where he has not already
been.”
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The juvenile court additionally found that that because appellant could be
placed on probation only until his eighteenth birthday, there would be insufficient
time to use available procedures, services, and facilities for his rehabilitation. And
because appellant could be incarcerated only until his nineteenth birthday, the
court found there was insufficient time to “provide the services necessary to
rehabilitate him in a manner that is adequate to protect the public.”
Appellant contends that the State did not present evidence about “what the
full range of procedures, services and facilities available to the Court are or why
they would be ineffectual” in rehabilitating him. He asserts that he has not received
the full rehabilitation that the juvenile system could provide, and he points to the
recommendations in the psychological evaluation that he likely would benefit from
a structured environment to help him regulate his involvement in negative
activities, “regular individual counseling sessions,” and “intensive and continued
substance-abuse treatment services in a residential setting.” Appellant also points
to the determination in the psychiatric evaluation that he “may still benefit from
another structural treatment program where he can learn to take responsibility for
his actions and develop empathy for victims.” The psychiatrist recommended
continued substance-abuse treatment. Appellant notes that he still has two years to
receive treatment within the juvenile system.
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However, as noted in the juvenile court’s order, over time appellant’s
criminal behavior continued to escalate despite numerous prior rehabilitative
measures. Appellant violated the terms of his probation on at least two separate
occasions, and he continued to commit serious crimes. The crimes alleged in this
case were committed while appellant was on parole. Further, while in juvenile
detention, among other problems appellant exhibited behavior that posed “a threat
to the safety and security of the facility.”
Given the repeated failures of the prior rehabilitative measures and the
increasingly violent nature of appellant’s behavior, we conclude that more than a
scintilla of evidence supports the juvenile court’s determination that this factor
weighs in favor of appellant’s certification as an adult. Even taking into account
the potential rehabilitative measures referenced in the various reports, we cannot
say that the juvenile court’s determination conflicted with the great weight and
preponderance of the evidence, given the failure of previous rehabilitative
attempts.
* * *
The juvenile court found that each of the section 54.02(f) factors weighed in
favor of discretionary transfer. We have found that the court’s factual findings
concerning each of the factors were supported by legally and factually sufficient
evidence. The juvenile court’s order reflects that it considered the evidence in light
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of the statutory factors. Because the court’s ultimate waiver decision was made
with reference to guiding rules and principles, we conclude that it did not abuse its
discretion by waiving its jurisdiction.
Conclusion
We dismiss appellate case no. 01-18-00186-CV for want of jurisdiction.
In appellate case nos. 01-18-00185-CV, 01-18-00187-CV, and 01-18-00188-
CV, we affirm the juvenile court’s order waiving jurisdiction.
Michael Massengale
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
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