Opinion
NO. 14-23-00141-CV
06-27-2023
In the MATTER OF H.W.
Mellissa A. Stryker, Kim K. Ogg, Houston, Jessica Alane Caird, for Appellee. Jerry Michael Acosta, Houston, for Appellant. Panel consists of Chief Justice Christopher and Justices Zimmerer and Poissant.
On Appeal from the 314th District Court, Harris County, Texas, Trial Court Cause No. 2021-00994J
Mellissa A. Stryker, Kim K. Ogg, Houston, Jessica Alane Caird, for Appellee.
Jerry Michael Acosta, Houston, for Appellant.
Panel consists of Chief Justice Christopher and Justices Zimmerer and Poissant. OPINION
Margaret "Meg" Poissant
In this accelerated appeal, appellant H.W. challenges the juvenile court’s order waiving its jurisdiction and transferring appellant’s criminal case to the criminal district court. In one issue, H.W. argues the evidence is legally and factually insufficient to support the juvenile court’s findings necessary to waive its jurisdiction. See Tex. Fam. Code Ann. § 54.02(j)(4). We affirm.
I. B ackground
On June 16, 2021, the State filed a petition alleging that H.W. engaged in delinquent conduct when he was a juvenile by committing the offense of aggravated sexual assault of D.S., a child younger than fourteen years of age, on or about September 1, 2012. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B). The State also filed a motion seeking waiver of jurisdiction over H.W. by the juvenile court and the transfer of H.W. to criminal district court for prosecution as an adult. D.S. is H.W.’s former stepsister.
On February 6, 2023, the trial court held an evidentiary hearing on the State’s motion. The trial court heard testimony from Deputy Andres Rosas ("Rosas"); Justin Lecourias ("Lecourias"); Cathy Williams ("Cathy"); Michael Williams ("Michael"); George Roman ("Roman"); and Rudy Vargas ("Vargas").
Rosas
Deputy Rosas is employed by the Harris County Precinct 4 Constable’s Office in its Child Abuse Unit. On July 1, 2020, Rosas was assigned to investigate the alleged sexual assault of D.S. by H.W. At the time of the alleged offense in 2012, D.S. was seven years old and H.W. was fourteen years old. H.W. turned eighteen in May 2016.
According to Rosas, D.S.’s mother first reported the alleged sexual assault to authorities in Texas in June 2020 when H.W. was twenty-two years old. Rosas testified that D.S.’s mother reported the alleged sexual assault after D.S. made an outcry to her by writing a letter describing the alleged abuse. In the letter, D.S. writes that the abuse began with H.W. showing her pornography and progressed to oral and vaginal sex.
During Rosas’s investigation, he spoke with H.W.’s father, who "denied any knowledge of ever being informed about any of these incidents …." Rosas also spoke with D.S.’s mother, who is H.W.’s former stepmother. D.S.’s mother informed Rosas that when D.S. was seven or eight years old, Marcela Campos ("Campos"), a former neighbor, told D.S.’s mother about a conversation between their daughters. In this conversation, D.S. told Campos’s daughter that H.W. had sex with D.S. Rosas interviewed Campos, who confirmed this conversation had occurred around 2013. Rosas testified that no calls were made to law enforcement resulting from D.S.’s conversation with Campos’s daughter, and D.S. stated in her forensic interview that, at that time when she was seven or eight years old, she denied the allegations to her mother because H.W. still lived with them.
Rosas also testified regarding D.S.’s forensic interview in August 2020, which was conducted by another professional. In her forensic interview, D.S. stated that when she visited her father in California in 2013, her stepmother caught her watching pornography and found blood on D.S.’s underwear. D.S.’s father and stepfather then took D.S. to a hospital in California. Ac- cording to Rosas, D.S. did not disclose or allege to anyone at the hospital or any law enforcement in California that there had been any sexual activity.
A recording of D.S.’s forensic interview was admitted into evidence.
D.S. also stated in her forensic interview that her father and stepmother in California were aware of only the pornography because D.S. did not disclose H.W.’s alleged abuse to them. D.S. stated that tests were performed on her when she went to the hospital in California but that she was never made aware of the results of the tests, nor did she specify what tests were performed. D.S. stated that the first person she made an outcry of sexual abuse to was Campos’s daughter and confirmed that Campos spoke with D.S.’s mother and that D.S.’s mother spoke to D.S. concerning this outcry. D.S. then told another friend around 2016 and then her boyfriend in 2020 who told D.S. to inform her mother.
On cross examination, Rosas was questioned concerning the thoroughness of his investigation. Rosas explained that child protective services ("CPS") carried out its own investigation parallel to his. According to Rosas, when he began his investigation, he did not review all of CPS’s records before beginning to conduct interviews because CPS’s "records were not complete at that time." Rosas was asked whether he requested from CPS any reports from 2012 or 2013, and Rosas explained that he requested all records in Texas available at the time of his investigation that involved the last names of D.S. or H.W. Finally, Rosas testified that he never attempted to get any records from California and that he did not interview D.S.’s father and stepmother whom D.S. was visiting in California.
While the Texas agency tasked with protecting abused and neglected children is properly referred to as the Department of Family and Protective Services, the witnesses refer to the Texas agency as Child Protective Services or CPS. CPS is one of the many functions of the Department. Cunningham v. Waymire, 612 S.W.3d 47, 52 n.2 (Tex, App.—Houston [14th Dist.] 2019, no pet.); see, e.g., Tex. Hum. Res. Code Ann. §§ 40.0505, 40.05275. We will use the acronym CPS to refer to the Department for convenience and consistency. The witnesses also refer to a CPS agency in California.
Rosas explained that he also checked the records in Harris County for any law enforcement calls in 2012 or 2013 to D.S. and H.W.’s home address but admitted it was possible that a report exists from 2013 in a . different database. Rosas explained he was never made aware of the possibility of a rape kit on D.S. in California because D.S. did not mention it during her forensic interview and D.S.’s mother did not mention it to him. Finally, Rosas testified that the events that occurred in California came to light in Texas only after H.W. turned eighteen years of age and that he would not have any knowledge of events occurring in California if no one reported the incident to a Texas law enforcement agency.
Lecourias
Lecourias is H.W.’s former stepfather. Lecourias testified that H.W.’s father informed Lecourias of accusations against H.W. concerning pornography and sexual assault which were revealed during D.S.’s trip to California in 2013. Lecourias was told D.S. was taken to a clinic in California and underwent an examination for sexual assault and that the investigation was closed. According to Lecourias, "everyone" inside the family discussed or knew about these allegations, including D.S.’s mother.
Cathy
Cathy is H.W.’s step-grandmother. Cathy testified that there was a family meeting at her house in July 2013 where she, her husband, H.W.’s father, D.S.’s mother, and H.W. were present. Cathy explained that the topic of the meeting was allega- tions of "either molestation or just … pornography" and that D.S. was taken to a doctor while in California. Cathy stated that D.S.’s mother was aware of the allegations and that she heard mention of an investigation by CPS in California but that "nothing became of it." According to Cathy, "we assumed every thing was closed" in California because she did not hear anything else about D.S.’s visit to the doctor or anything else from CPS.
Michael
Michael is Cathy’s husband and H.W.’s grandfather. Michael’s testimony mirrored Cathy’s concerning the family meeting in 2013, including that D.S. had mentioned being molested and that CPS was contacted. Michael also stated that D.S.’s mother told him that there had been a sexual-assault examination in California, as well as a follow-up investigation, and that "nothing was determined to be true."
Roman
Roman is the brother-in-law of H.W.’s father. Roman testified that in 2013 he received information that D.S. was caught with pornography in California and an allegation that H.W. sexually abused her.
Vargas
Vargas is a licensed private investigator. Vargas testified that he interviewed D.S.’s stepmother and was informed that she took D.S. for a sexual-assault examination because D.S. alleged sexual abuse by H.W.
Vargas attempted to locate records from California regarding a sexual-assault investigation but was unable to retrieve them, if any existed, and explained that he was not told that the records do not exist. Vargas also testified that under California law, individuals who receive information about child sexual assault, including doctors, nurses, and emergency medical services, are required to report it to a law enforcement agency, even if the alleged assault occurred outside of California’s jurisdiction.
Admitted Exhibits
The trial court admitted into evidence exhibits, several of which are relevant to our analysis: five court report information summaries prepared as part of the underlying criminal charge, noting H.W.’s previous referrals for unrelated criminal charges in 2013; a Harris County Juvenile Probation Department Certification Hearing Report, noting that on June 18, 2021, "the Department of Family and Protective Services reported no history" concerning H.W.; and an investigation report by caseworker Tequilia Lagrone, noting D.S.’s narrative when the alleged offense was reported and that "[t]here was an investigation in California, but [D.S.] denied having sex with" H.W.
Trial Court’s Ruling
On February 6, 2023, the trial court signed an order waiving its exclusive jurisdiction and transferring H.W. to criminal district court, finding that "for a reason beyond the control of the State it was not practicable to proceed in juvenile court before [H.W.’s] 18th birthday," see Tex. Fam. Code Ann. § 54.02(j)(4)(A), and that "the State did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of" H.W. (CR 76-79). See id. § 54.02(j)(4)(B)(i). This appeal followed.
II. D iscussion
In his sole issue, H.W. argues that there is insufficient evidence to support the juvenile court’s findings necessary under Texas Family Code § 54.02(j)(4) to waive its jurisdiction. See id. § 54.02(j)(4). H.W. argues that there was insufficient evidence that (1) it was not practicable to proceed in juvenile court before H.W.’s eighteenth birthday "for a reason beyond the control of the state"; and (2) after due diligence of the state, it was not practicable to proceed in juvenile court before H.W.’s eighteenth birthday. As discussed below, H.W.’s argument on appeal implicitly presents a question of first impression of statutory interpretation.
A. A pplicable L aw
[1] "Children ordinarily are not subject to criminal proceedings like adults." In re S.G.R., 496 S.W.3d 235, 238 (Tex. App.—Houston [1st Dist.] 2016, no pet.). When a child engages in conduct that would be considered criminal if committed by an adult, it is called "delinquent conduct." See Tex. Fam. Code Ann. § 51.03(a)(1).
[2] Juvenile courts have exclusive original jurisdiction over cases involving delinquent conduct by children between ten and seventeen years old. Tex. Fam. Code Ann. §§ 51.02(2)(A), 51.04(a). Delinquency proceedings against minors proceed in juvenile court under the Juvenile Justice Code. See id. §§ 51.01–61.107. A juvenile court may waive its exclusive original jurisdiction under certain conditions and allow transfer of the proceeding to a district court for criminal prosecution. Id. § 54.02(a), (j). "Generally, the transfer of a juvenile offender from a juvenile court to a criminal district court for prosecution as an adult should be regarded as the exception, not the rule." In re J.W.W., 507 S.W.3d 408, 414 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
[3] In a juvenile transfer proceeding, the State must produce evidence that persuades the juvenile court, by a preponderance of the evidence, that waiver of its exclusive original jurisdiction is appropriate. Moon v. State, 451 S.W.3d 28, 36 (Tex. Crim. App. 2014), over’d on other grounds by Ex parte Thomas, 623 S.W.3d 370, 40–41, 45 (Tex. Crim. App. 2021). What the State must prove to obtain transfer depends on whether the minor has reached the age of eighteen by the date of the transfer hearing. See Tex. Fam. Code Ann. § 54.02. "Section 54.02(a) applies where the juvenile is less than eighteen years of age at the time of the transfer hearing," while "Section 54.02(j) applies where the juvenile is eighteen years old at the time of the transfer hearing." In re A.M., 577 S.W.3d 653, 657–58 (Tex. App.—Houston [1st Dist.] 2019, pet. granted); see Morrison v. State, 503 S.W.3d 724, 727–28 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd).
If the accused is eighteen years of age or older, then the juvenile court may waive its exclusive jurisdiction and transfer to the appropriate district court for criminal proceedings if the juvenile court finds from a preponderance of the evidence that (1) "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"; or (2) after due diligence of the state, it was not practicable to proceed in juvenile court before the person's eighteenth birthday because the state did not have probable cause to proceed in juvenile court and new evidence has been found since the eighteenth birthday of the person. Tex. Fam. Code Ann. § 54.02(j)(4)(A), (B)(i) (emphasis added). Subsection (j)(4) "is meant to limit 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." Moore, 532 S.W.3d at 405. B. S tandard of R eview
The juvenile court may also waive jurisdiction if it finds, after due diligence of the state, that it was not practicable to proceed in juvenile court before the person’s eighteenth birthday because (1) the person could not be found, or (2) a previous transfer order was reversed by an appellate court or set aside by a district court. Tex. Fam. Code Ann. § 54.02(j)(4)(B)(ii)–(iii).
[4] In reviewing a discretionary transfer, we evaluate the trial court’s findings of fact under traditional sufficiency-of-the-evidence principles. In re J.G., 495 S.W.3d 354, 369 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). Under a legal-sufficiency challenge, we credit evidence favorable to the challenged finding and disregard contrary evidence unless a reasonable factfinder could not reject the evidence. Id. at 369–70. If there is more than a scintilla of evidence to support the finding, then the no-evidence challenge fails. Id. at 370. Under a factual-sufficiency challenge, 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. Id.
[5] If the findings of the juvenile court are supported by legally and factually sufficient proof, then we review the ultimate waiver decision under an abuse-of-discretion standard. Moon, 451 S.W.3d at 47; In re H.Y., 512 S.W.3d 467, 478–79 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
We apply a two-pronged analysis to determine an abuse of discretion: (1) did the [juvenile] court have sufficient information upon which to exercise its discretion; and (2) did the [juvenile] court err in its application of discretion? A traditional sufficiency of the evidence review helps answer the first question, and we look to whether the [juvenile] court acted without reference to any guiding rules or principles to answer the second.
Moon, 451 S.W.3d at 47.
[6] We review questions of statutory interpretation de novo. See Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008). "When interpreting statutory language, we focus on the collective intent or purpose of the legislators who enacted the legislation," starting with the text itself, which "provides the best means to determine the fair, objective meaning of that text at the time of its enactment." Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)) (internal quotation marks omitted).
[7–10] We construe a statute according to its plain meaning and consider extratextual factors if the statutory language is ambiguous or if the plain meaning would lead to an absurd result. Dunham, v. State, 666 S.W.3d 477, 484 (Tex. Crim. App. 2023).
To determine the plain meaning, we apply the canons of construction, which include a list of presumptions regarding legislative intent. It is presumed that the statute complies with the Texas and federal constitutions; the entire statute is intended to be effective; a just and reasonable result is intended; a result feasible of execution is intended; and public interest is favored over private interest…. If, however, the statutory terms have a technical meaning, we will construe them consistent with the technical meaning.
Id. When determining the fair, objective meaning of an undefined statutory term, we may consult standard dictionaries. Id.
C. A nalysis
H.W. was fourteen years old when he allegedly assaulted D.S. and was twenty-three years old when the State filed its petition alleging he engaged in delinquent conduct. Upon H.W. reaching the age of eighteen, the juvenile court’s jurisdiction was limited to either dismissing the case or transferring the case to adult criminal court. Moore v. State, 532 S.W.3d 400, 404–05 (Tex. Crim. App. 2017); In re N.J.A., 997 S.W.2d 554, 555–56 (Tex. 1999). H.W. argues that the State failed to prove that it was not practicable to proceed in juvenile court before H.W.’s eighteenth birthday for a reason beyond the control of the State. See Tex. Fam. Code Ann. § 54.02(j)(4)(A).
H.W. argues that "[s]everal family members testified that they were aware that law enforcement was contacted in California in 2013 over these allegations." H.W. further argues that "[t]he ‘state’ for purposes of section 54.02(j)(4)(A) includes both law enforcement and the prosecution" and cites Moore v. State. 532 S.W.3d at 403–04. Implicit in H.W.’s argument is a contention that there were no reasons beyond the control of the State of Texas preventing his prosecution as a juvenile because in 2013 law enforcement and authorities in California were alerted to the alleged sexual assault in Texas. Whether "the state" for purposes of § 54.02 includes law enforcement of another state is a question of first impression.
1. The "state" in § 54.02 means the State of Texas
The plain language of the statute provides that in order to waive its jurisdiction, the juvenile court must find by a preponderance of the evidence that "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 …." Tex. Fam. Code Ann. § 54.02(j).
[11] The statute does not define "the state"; thus, we apply the plain meaning of the term and consider its common usage. Moore v. State, 532 S.W.3d 400, 403 (Tex. Crim. App. 2017); see Tex. Fam. Code Ann. §§ 51.02, 54.02. In Moore, the Court of Criminal Appeals held that "State" includes law enforcement and prosecution connected to the investigation and prosecution of the case but did not address whether law enforcement and prosecution referred to only this state or all states. Moore, 532 S.W.3d at 404; see Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011) (" ‘the State’ includes, in addition to the prosecutor, other lawyers and employees in his office and members of law enforcement connected to the investigation and prosecution of the case.") (citing Ex parte Reed, 271 S.W.3d 698, 726 (Tex. Crim. App. 2008)).
[12] Here, the plain language of the statute uses the singular noun "state," instead of "states." While Moore provides that "state" includes law enforcement and the prosecution, the Court of Criminal Appeals did not include in that definition law enforcement and the prosecution in other states. Additionally, there is no indication in the statute that the word "state" is intended to expand to other jurisdictions, and H.W. cites no authority in support of this argument. Accordingly, we reject H.W.’s invitation to expand the definition of the word "state" to include other jurisdictions and conclude that "state" in § 54.02 means the State of Texas, which includes law enforcement and the prosecution in Texas connected to the investigation and prosecution of H.W., and we reject H.W.’s contention that "state" in § 54.02 includes law enforcement and the prosecution in the State of California. See Dunham, 666 S.W.3d at 484; Moore, 532 S.W.3d at 403–04; see also Tex. Code Crim. Proc. Ann. art. 3.02 ("A criminal action is prosecuted in the name of the State of Texas against the accused, and is conducted by some person acting under the authority of the State, in accordance with its laws.").
Because it is dispositive, we will address the legal and factual sufficiency of the evidence supporting the trial court's finding that it was not practicable to proceed in juvenile court before H.W.’s eighteenth birthday for a reason beyond the control of the state. See Tex. Fam. Code Ann. § 54.02(j)(4)(A).
2. The Evidence is Legally Sufficient
[13] Here, there is evidence provided by Rosas’s testimony and D.S.’s forensic interview that D.S. never informed her father and stepmother in California in 2013 that she was sexually abused by H.W. Additionally, the five court report information summaries admitted into evidence indicate that no criminal referral was made concerning H.W. for the alleged sexual abuse prior to 2020. Further, Rosas testified that he requested all records from CPS in Texas and did not receive any information concerning the alleged outcry in California in 2013. This is legally sufficient evidence that the State of Texas was not informed of D.S.’s alleged outcry, if any, in California in 2013.
Finally, the evidence in the record shows that the State of Texas was informed of the alleged abuse in 2020, when D.S.’s mother contacted CPS and law enforcement, when H.W. was over 18 years of age. We conclude that the evidence is legally sufficient to support the trial court’s finding that it was not practicable to proceed in juvenile court before H.W.’s eighteenth birthday because of a reason beyond the control of the State of Texas because the State was not aware of the alleged offense until after H.W. turned eighteen years of age. See In re J.G., 495 S.W.3d at 369–70. Thus, the evidence is legally sufficient to support the trial court’s order.
3. The Evidence is Factually Sufficient
[14] While there is evidence in the record that D.S. communicated to her family in 2013 that she was sexually assaulted by H.W., that she was taken to a hospital in California by her family, and that medical professionals in California are required to report sexual abuse of children even if it occurred outside of California’s jurisdiction, there is no evidence that the State of Texas was aware of these allegations until 2020. On the contrary, the only evidence in the record on this issue supports the trial court’s implicit finding that the State of Texas was never contacted by anyone in the State of California concerning the alleged outcry by D.S. in 2013 and that the State of Texas was only made aware of the allegation of sexual abuse in 2020.
Considering all of the evidence presented, we conclude that the juvenile court’s finding necessary to waive its exclusive jurisdiction—that H.W. could not be prosecuted in juvenile court before he turned eighteen years of age due to reasons beyond the control of the State of Texas—is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Id.; see In re D.W.L., 828 S.W.2d 520, 525 (Tex. App.—Houston [14th Dist.] 1992, no writ) ("The trial court is the sole factfinder in a pretrial hearing and may choose to believe or disbelieve any or all of the witnesses’ testimony."). Therefore, we conclude that the evidence is factually sufficient. See In re J.G., 495 S.W.3d at 370.
Because we conclude that there was legally and factually sufficient evidence supporting the trial court’s finding that "for a reason beyond the control of the State it was not practicable to proceed in juvenile court before [H.W.’s] 18th birthday," we cannot conclude that the trial court abused its discretion when it waived its jurisdiction and transferred H.W. to criminal district court for prosecution as an adult. See Tex. Fam. Code Ann. § 54.02(j)(4)(A). We overrule H.W.’s sole issue on appeal. III. C onclusion
Because we conclude the evidence is factually and legally sufficient to support the trial court's finding that it was not practicable to proceed in juvenile court before H.W.’s eighteenth birthday because of a reason beyond the control of the State of Texas, we need not address H.W.’s argument that the evidence was insufficient to support the trial court's finding that "after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of" H.W. See Tex. Fam. Code Ann. § 54.02(j)(4); Tex. R. App. P. 47.1, 47.4.
The trial court’s order is affirmed.