Opinion
13-23-00294-CV
08-03-2023
IN THE MATTER OF W.C.R.
On appeal from the County Court at Law of Gillespie County, Texas.
Before Justices Tijerina, Silva, and Peña
MEMORANDUM OPINION
CLARISSA SILVA, JUSTICE
Appellant W.C.R. appeals from the juvenile court's order waiving jurisdiction and transferring appellant to district court. See Tex. Fam. Code Ann. § 54.02. By two issues, appellant argues that the juvenile court lacked jurisdiction over appellant because appellant was not a child at the time juvenile proceeding were initiated; and there was no probable cause to believe appellant committed two of the three offenses alleged; therefore, transfer under § 54.02(j) was inappropriate. See id. We affirm.
In appeals involving juvenile court cases, the Texas Rules of Appellate Procedure require the use of an alias to refer to a minor. Tex.R.App.P. 9.8.
This case is before the Court on transfer from the Fourth Court of Appeals in San Antonio pursuant to a docket-equalization order issued by the Supreme Court of Texas. See Tex. Gov't Code Ann. §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is "good cause" for the transfer).
I. Background
On January 9, 2023, the State filed a petition with the juvenile court seeking to transfer nineteen-year-old appellant to district court to stand trial for one count of indecency with a child by contact and two counts of aggravated sexual assault of a child. See Tex. Penal Code Ann. §§ 21.11, 22.021. A hearing was conducted on the State's petition during which the following evidence was adduced.
At the hearing, the trial court also considered appellant's previously filed motion to dismiss, wherein appellant argued the juvenile court lacked jurisdiction to consider the State's transfer petition because it failed to file the petition before he turned eighteen. See Tex. Fam. Code Ann. § 54.02(j)(4)(A).
On October 7, 2022, Cynthia Reyes called the Kerrville Police Department to report the contents of a note that eleven-year-old N.R. had passed her daughter during school. In the note, N.R. threated to commit suicide, alleging he had been molested by his cousin, appellant, five years prior. Police contacted N.R.'s parents. During a discussion with officers, N.R.'s parents recalled an incident occurring approximately five years prior that N.R.'s older brother, E.R., had relayed involving appellant. Appellant purportedly showed E.R. and N.R. his genitals and asked to see theirs when the children were at the family's ranch in Mountain Home, Gillespie County. N.R.'s parents stated that E.R.'s disclosure prompted them to have a discussion with their children about "inappropriate touching," but at the time, no allegations of sexual assault arose. N.R.'s parents were cooperative with the investigation and transported N.R. to be interviewed at the Kid's Advocacy Place (KAP).
N.R. told the KAP interviewer he was sexually abused when he was in the second grade by appellant and, separately, by appellant's sister. N.R. stated that the incident with appellant occurred in appellant's black Jeep outside the family's Mountain Home ranch. Appellant reportedly put N.R. in the back seat, crawled beside him, and exposed himself to N.R. Appellant then made N.R. "suck on [appellant's] privates." N.R. described the appearance of appellant's genitals and stated he "gag[ged]" when appellant's penis hit the back of his throat. Appellant thereafter made N.R. strip down and kneel over the backseat while appellant inserted his penis in between N.R.'s buttocks. N.R.'s KAP interview confirmed the location of the alleged sexual assault, and the case was transferred to Gillespie County on October 10, 2022.
Gillespie County Sheriff's Deputy Investigator Sergeant James Ahrens testified that he met with appellant on November 2, 2022. During the interview, appellant confessed to a single incident involving N.R. occurring at the family's Gillespie County ranch three years prior in 2019, when he was sixteen and N.R. was eight. Appellant stated that he and N.R. had been looking at pictures of girls on his phone when N.R. asked appellant if he could touch appellant's genitals, which appellant allowed because appellant was "drunk." Following appellant's confession, Sergeant Ahrens referred the case to the State on a single indecency charge on November 16, 2022. On cross examination, Sergeant Ahrens was questioned as to why he had elected not to include charges of sexual assault, which he responded that he "d[id no]t have enough proof for sexual assault."
The juvenile court waived its jurisdiction and certified appellant to stand trial in district court by written order on May 10, 2023. The juvenile court supported its order with findings of fact and conclusions of law, including:
• N.R. is a credible complainant and "under fourteen (14) years of age at the time of the alleged acts of sexual abuse in the State's Original Petition[.]"
• Appellant was over the age of eighteen at the time of the State's filing of its petition, and it had not been practicable to proceed in juvenile court before appellant's eighteenth birthday because N.R. "had not disclosed or revealed or told anyone or made any allegations concerning any acts of alleged sexual assault against [him] by [appellant]," prior to appellant's eighteenth birthday.
• Appellant is "sophisticated and mature to a degree to understand the nature of these proceedings[.]"
• "[N]o adjudication concerning the alleged offenses have been made or no adjudication hearing concerning the offenses have been conducted[.]"
• Probable cause exists to find that appellant committed the first-degree offense of aggravated sexual assault and the second-degree offense of indecency with a child against N.R. on or about October 1, 2019, as alleged in Counts 1, 2, and 3.
• "[B]ased upon a consideration of all of the evidence before the court, discretionary transfer of jurisdiction to [district] court is granted with respect to [Counts 1, 2, and 3] in the State's Original Petition because the juvenile system does not have the practical ability to offer any services to the Respondent due to his age, without transfer a serious crime could potentially go unpunished, without transfer the alleged victim would be denied justice, and the seriousness of the offense merits transfer of jurisdiction[.]"
This accelerated appeal followed.
II. Due Diligence
By his first issue, appellant challenges the juvenile court's jurisdiction because "appellant was nineteen years old when the State filed its Original Petition to Transfer."
A juvenile court has exclusive original jurisdiction over all proceedings involving the "delinquent conduct" of a person who was a child at the time they engaged in the conduct. Tex. Fam. Code Ann. § 51.04(a). A person accused of committing a felony offense between his tenth and seventeenth birthday is subject to the exclusive original jurisdiction of a juvenile court. Id. §§ 51.04(a); 51.02(2)(A) (defining "child" as a person who is "ten years of age or older and under 17 years of age"). A juvenile court does not lose jurisdiction when a juvenile turns eighteen, however, its jurisdiction becomes limited. Moore v. State, 532 S.W.3d 400, 404 (Tex. Crim. App. 2017).
Specifically, § 54.02(j) provides the procedural vehicle for a juvenile court to waive its exclusive original jurisdiction and transfer a person to the appropriate district court or criminal district court for criminal proceedings where the accused is over eighteen years of age at the time of the State's filing. Id. Waiver and transfer may occur where the following criteria are met:
(1) the person is 18 years of age or older;
(2) the person was . . . 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 . . . [or] 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:
. . . .
(B) after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person because . . . the state did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of the person;
(5) the juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged.Tex. Fam. Code Ann. § 54.02(j); Ex parte Thomas, 623 S.W.3d 370, 377-78 (Tex. Crim. App. 2021) ("But if the person who is alleged to have committed a felony as a child has reached his eighteenth birthday, the juvenile court must make the transfer under [§] 54.02(j)."). Section § 54.02(j) "does not impose an arbitrary deadline for prosecutorial action." Moore, 532 S.W.3d at 404. Rather, it sets forth the criteria necessary for a juvenile court to waive its jurisdiction and transfer a person who is eighteen years of age or older to a district court. Id. "[I]f the person is over the age of [eighteen], and [§] 54.02(j)'s criteria are not satisfied, the juvenile court's only option is to dismiss the case." Id. at 405.
To appellant's first issue, we disagree that the fact that appellant was over eighteen at the time the State filed its petition creates an automatically jurisdictionally prohibitive circumstance. See Moore, 532 S.W.3d at 404. Pursuant to § 54.02(j), because appellant was over eighteen, the appropriate inquiry is whether the State was diligent in moving forward with its prosecution of appellant's case and able to reasonably explain delays, if any. See In re J.C.W.G., 613 S.W.3d 560, 566 (Tex. App.-San Antonio 2020, no pet.); Moore v. State, 446 S.W.3d 47, 52 (Tex. App.-Houston [1st Dist.] 2014), aff'd, 532 S.W.3d 400 (Tex. Crim. App. 2017) ("To transfer the case to a criminal district court after a person's eighteenth birthday, the juvenile court must find, by a preponderance of the evidence, that the State has satisfied the [§] 54.02(j) requirements-that the delay happened for reasons outside the control of the State."). Diligence is usually a question of fact, and we review the juvenile court's findings for an abuse of discretion. In re J.C.W.G., 613 S.W.3d at 566.
At the outset of our analysis, we observe that the parties and the juvenile court appear to have discussed a multitude of elements which are not applicable in a case of this type. In its written findings, the trial court stated that it considered, among other things: (1) the seriousness of the charged offenses; (2) that the charged offenses were against a person rather than property; (3) appellant's sophistication and maturity; (4) the lack of rehabilitative options in the juvenile system available because appellant is over eighteen; and (5) the need for criminal proceedings in order to protect the community. See Tex. Fam. Code Ann. § 54.02(a), (f). But, in a transfer proceeding under subsection (j), the juvenile court is not instructed to consider the subsection (f) factors enumerated above. See Ex parte Thomas, 623 S.W.3d 370, 379 (Tex. Crim. App. 2021) ("Subsection (j) does not require the juvenile court to consider the (f) factors."), see also In re C.C.C., No. 13-21-00371-CV, 2022 WL 710143, at *9 (Tex. App.-Corpus Christi-Edinburg Mar. 10, 2022, no pet.) (mem. op.).
Based on the evidence presented, the alleged offenses occurred on or about October 1, 2019, when appellant was sixteen and N.R. was eight years old. N.R., however, made his first and only outcry in early October 2022-when appellant was nineteen years old. Three months after N.R.'s outcry, the State filed its petition. Thus, more than a scintilla of evidence supports the juvenile court's findings that the State proceeded with due diligence, and for reasons beyond the control of the State, it was not practicable to proceed in the juvenile court before appellant's eighteenth birthday. See In re D.I.R., 650 S.W.3d 172, 177-78 (Tex. App.-El Paso 2021, no pet.) (concluding the juvenile court did not abuse its discretion in waiving its jurisdiction and transferring the case pursuant to § 54.02(j) where appellant was over eighteen at the time the investigation commenced and petition was filed); see also In re B.W.K., No. 11-20-00238-CV, 2021 WL 1421536, at *1 (Tex. App.-Eastland Apr. 15, 2021, pet. denied) (mem. op.) (concluding the juvenile court did not abuse its discretion in waiving its jurisdiction and transferring the case pursuant to § 54.02(j) where a child complainant did not make an outcry until after appellant's eighteenth birthday); In re G.O., No. 05-19-01429-CV, 2020 WL 1472218, at *4 (Tex. App.-Dallas Mar. 26, 2020, no pet.) (mem. op.) (same); In re D.A.D., No. 05-17-00294-CV, 2017 WL 3976585, at *1 (Tex. App.-Dallas Sept. 11, 2017, pet. denied) (mem. op.) (same); In re A.B., No. 02-18-00274-CV, 2019 WL 983751, at *2 (Tex. App.-Fort Worth Feb. 28, 2019, no pet.) (mem. op.) (same). We overrule appellant's first issue.
III. Probable Cause
By appellant's second issue, he challenges the juvenile court's determination that there is probable cause to believe that appellant committed aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021.
"We review a juvenile court's findings of fact concerning a transfer decision under traditional sufficiency principles." In re J.C.D., 591 S.W.3d 194, 196 (Tex. App.-Tyler 2019, no pet.). "In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the juvenile court's findings and disregard contrary evidence unless a reasonable [factfinder] could not reject it." Bell v. State, 649 S.W.3d 867, 887 (Tex. App.-Houston [1st Dist.] 2022, pet. ref'd); 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 findings, then the evidence is legally sufficient." Bell, 649 S.W.3d at 887. "Under a factual[ ]sufficiency review, we consider all the evidence presented to determine if the juvenile court's findings conflict with the great weight and preponderance of the evidence so as to be clearly wrong or unjust." Id. Moreover, a juvenile court may rely on the testimony of law enforcement officials to support a probable cause finding, including testimony regarding statements made by a complainant. In re D.I.R., 650 S.W.3d at 180-81; In re R.G., Jr., 865 S.W.2d 504, 508-09 (Tex. App.-Corpus Christi-Edinburg 1993, no writ) (affirming probable cause finding by a juvenile court where the officer's testimony was the sole evidence).
As relevant here, a person commits aggravated sexual assault of a child if the person intentionally or knowingly causes the penetration of the mouth of a child younger than fourteen years of age with the male sexual organ of the person; causes the mouth of a child younger than fourteen years of age to contact the male sexual organ of the person; or causes the anus of a child younger than fourteen years of age to contact the sexual organ of the person. Tex. Penal Code Ann. § 22.021(a)(1), (2)(B). Here, the testimony from Sergeant Ahrens, coupled with exhibits detailing N.R.'s forensic interview, provided sufficient facts and circumstances to believe appellant committed the alleged offense of aggravated sexual assault of a child. See id.; see also In re H.W., No. 14-23-00141-CV, 2023 WL 4188363, at *7 (Tex. App.-Houston [14th Dist.] June 27, 2023, no pet. h.) (mem. op.) (affirming trial court's order transferring proceedings to criminal district court based on investigator testimony and the child's forensic interview); see also In re B.C.B., No. 05-16-00207-CV, 2016 WL 3165595, at *4 (Tex. App.-Dallas June 7, 2016, pet. denied) (mem. op.) (concluding the probable cause threshold was reached when the complainant first disclosed the sexual assault). Although there exists no physical evidence and there was conflicting evidence regarding the date of the alleged offenses or that the alleged offenses even occurred, the record contains some evidence that appellant engaged in penile to anal penetration and penile to oral penetration when N.R. was in second grade, which would have been after his eighth birthday and before appellant was eighteen. See Tex. Penal Code Ann. § 22.021(a)(1), (2)(B); In re S.G.R., 496 S.W.3d 235, 239 (Tex. App.-Houston [1st Dist.] 2016, no pet.); see also In re X.H., No. 14-23-00187-CV, 2023 WL 4196557, at *3 (Tex. App.-Houston [14th Dist.] June 27, 2023, no pet. h.) (mem. op.) ("[T]he complainant is a firsthand witness, and her testimony in a criminal prosecution would be sufficient by itself to support a conviction beyond a reasonable doubt."). Consequently, there is more than a scintilla of evidence to support the juvenile court's finding of probable cause. See id. We overrule appellant's second issue.
IV. Conclusion
We affirm the juvenile court's order waiving jurisdiction and transferring the case to the district court.