Opinion
NO. 01-17-00889-CV NO. 01-17-00890-CV
05-08-2018
IN THE MATTER OF J. D. H., Appellant
On Appeal from the 313th District Court Harris County, Texas
Trial Court Case No. 2017-02248J & 2017-01833J
MEMORANDUM OPINION
This is an interlocutory appeal from a juvenile court order waiving jurisdiction over appellant, J.D.H., regarding the charges against him for aggravated robbery and murder, and transferring his case to criminal district court. In two issues, J.D.H. argues that the juvenile court abused its discretion by waiving jurisdiction and transferring the case because (1) the evidence was legally and factually insufficient to support the juvenile court's finding that there was probable cause to believe that J.D.H. had committed the offenses as alleged and (2) the evidence was legally and factually insufficient to support the juvenile court's findings that the welfare of the community required criminal proceedings.
See TEX. FAM. CODE ANN. § 56.01(c)(1)(A), (h) (West Supp. 2017).
We affirm.
Background
J.D.H. was indicted for the felony offenses of aggravated robbery and murder. The State filed a motion asking the juvenile court to waive its jurisdiction over J.D.H., certify him to be tried as an adult, and transfer his cases to the criminal district court. The juvenile court ordered that a certification evaluation be conducted, and an investigation was completed.
J.D.H. was charged with aggravated robbery in cause number 2017-01833J, resulting in appellate cause number 01-17-00890-CV. He was charged with murder in cause number 2017-02248J, resulting in appellate cause number 01-17-00889-CV.
On October 17, 2017, the juvenile court conducted a certification hearing on the State's motion to waive jurisdiction and transfer the cases to the criminal district court. The parties entered into a stipulation regarding J.D.H.'s date of birth, establishing on the record that he was born on May 17, 2002, making him fifteen at the time of the hearing. The juvenile court also admitted into evidence proof of service for J.D.H. and his parents and copies of the reports and evaluations completed on J.D.H. in preparation for the certification hearing, including the Court Report Information Summary, a Harris County Juvenile Probation Department Court Report, the psychiatric report of Dr. Linda Wittig, and the Juvenile Forensic Unit's report, created by psychologist Alexandra Maestre and approved by supervising psychologist Uche Chibueze, following the certification evaluation.
The record demonstrated that J.D.H. had seven previous referrals to the juvenile justice system: mischief resulting in property damage in February 2015; burglary of a motor vehicle in May 2015; unauthorized use of a motor vehicle and evading arrest/detention in April 2016; and three different violations of the terms of his probation from the 2016 offenses. He had been detained in several juvenile facilities but continued to engage in delinquent and criminal behavior. J.D.H. was detained on the underlying charges beginning in April 2017.
The reports entered into evidence at the certification hearing contained information regarding the circumstances of the charged offenses of murder and aggravated robbery and the subsequent investigations; information regarding J.D.H.'s current detention and disciplinary problems during his detention; his education history, indicating poor attendance and grades; and the history of J.D.H.'s relationships, asserting that J.D.H. "is believed to be a member of the JACC BOYS Clique" and that, although he denied being an actual member, he had admitted affiliation with other members of that gang. The reports further indicated that J.D.H. lived with his mother, and had no contact with his father. He had a history of marijuana use, including an incident in which he was found unconscious after smoking synthetic marijuana and was treated at the hospital.
The Juvenile Probation Department Court Report indicated that J.D.H. had been detained on other charges, including unauthorized use of a motor vehicle, and then released and placed on probation. He complied with the random drug screenings and assessment for services, but he failed to attend the Gang Alternative Prevention Program and had problems with truancy and curfew violations. The report noted that his "overall adjustment to probation [for his 2016 offenses] has been unsatisfactory," stating, "He has violated his Court Ordered curfew on numerous occasions, has accumulated excessive unexcused school absences, and is currently at the Juvenile Justice Center for an alleged offense of Murder." He had been given an ankle monitor at one point, but it was removed because he had numerous curfew violations.
The record contained a risk assessment indicating that J.D.H.'s overall risk to reoffend was high based on both his criminal and his social history.
A psychiatric evaluation was conducted by Dr. Linda Wittig, and her report was included in the record. She noted that J.D.H. "had a history of suspensions [from school] due to physical alterations" and disrespectful behavior, and he had a history of truancy. Dr. Wittig's report noted J.D.H.'s prior adjudications for burglary of a motor vehicle and criminal mischief, noting that he was placed on "the 30-Day Impact Unit" but "did not do well" in that program and "was transferred to the Phoenix Unit Program at [the Burnett-Bayland Reception Center, a juvenile detention center]" where he remained from August 11, 2015, until November 4, 2015. After his release, J.D.H. was placed on probation and initially did well, but he ultimately had difficulties, including testing positive for marijuana use and being detained from February 9, 2016, until March 28, 2016, on charges "involv[ing] auto-theft, evading arrest, and trespassing with a vehicle."
Dr. Wittig determined that J.D.H.'s intelligence was "perhaps in the borderline to low average range of intellectual functioning." Dr. Wittig discussed with J.D.H. the nature of the charges against him and the consequences of conviction, courtroom roles of the judge, jury, and attorneys, and his ability to assist in his own defense. She concluded that J.D.H.'s "past testing suggests that he has some limitations in intellectual functioning and achievement" and that he had "a history of poor impulse control, poor frustration tolerance, distractibility, and hyperactivity." Dr. Wittig "did not see [J.D.H.] as imminently suicidal or homicidal, although he could be at chronic risk for self-destructive or aggressive behaviors in light of his history." She stated in her report,
Despite the presence of his emotional symptoms and limitations in intellectual functioning, [J.D.H.] showed an understanding of his charges and possible consequences of being found responsible for these. With prompting he showed an understanding of the court proceedings which he faces as well as the roles of various individuals and the jury in the courtroom. Based on his way of relating in the interview today, [J.D.H.] should be able to assist his attorney in his defense, if given concrete directives and advice.Dr. Wittig determined that J.D.H. "can be deemed competent and fit to proceed" in criminal district court. She diagnosed him with ADHD and "Unspecified Disruptive, Impulse Control, and Conduct Disorder."
Dr. Wittig also made the following recommendations:
If [J.D.H.] is found responsible for the incidents resulting in his referral to the Juvenile Probation Department, he may benefit from a structured residential treatment setting where he can learn to take responsibility for his actions and develop empathy for victims. He also would benefit from opportunities to get back on track with regard to his education. He may benefit once again from medication such as those he was given [during an earlier detention]. In addition, he would benefit from substance abuse interventions in whatever setting he is placed.
[J.D.H.] is still relatively young and would benefit from anger management, social skills, and family interventions ultimately. It appears from the records that his family was never able to follow through with getting him to appointments. He may also ultimately benefit from a mentor who can help him persist in school and become involved in prosocial activities.
J.D.H. was also tested for overall intellectual ability and cognitive strengths and weakness by psychologist Alexandra Maestre, who was under the supervision of psychologist Uche Chibueze. J.D.H.'s IQ was in the "very low" range, and his verbal and mathematical knowledge was determined to be equivalent to that of an average third or fourth grader. He also scored in the "borderline" range on a test of his adaptive functioning, based on the "Street Survival Skills Questionaire." J.D.H. was also assessed for his level of criminal sophistication and dangerousness, and Maestre determined, excluding the underlying charged offenses, that J.D.H.'s "rated Violent and Aggressive Tendencies, Planned and Extensive Criminality, and Psychopathic Features fell in the High range." Based on all of the testing, Maestre concluded, "In light of the results from [the various cognitive and behavioral tests], and the narrative assessment of [J.D.H.'s] level of dangerousness/sophistication, it is felt that [J.D.H.] exhibits a below average level of intellectual-based sophistication, and an average level of criminal sophistication and dangerousness in comparison to most offenders his age. . . ."
Maestre further determined that J.D.H. exhibited "a below average level of maturity in comparison to most individuals his age." Maestre considered J.D.H.'s past detentions and rehabilitation efforts in addition to the extensive testing and determined that although J.D.H. "demonstrated compliance [with rehabilitation efforts] in some areas, he continued to exhibit some behavioral disturbances while in placement," citing "persistent refusal to follow program rules," "aggressive physical contact toward another individual," and "poor compliance while on probation." Maestre also noted numerous infractions during J.D.H.'s current period of detention on the underlying charges, and ultimately determined that J.D.H. "exhibits a Moderately Low level of treatment amenability in comparison to most individuals his age" and that "without treatment, without legal consequences of any kind, and without time to mature, it would appear that [J.D.H.] is at Moderately High Risk for some type of reoffending[.]"
Maestre recommended, "Due to the seriousness of the nature of his alleged offense, if adjudicated, [J.D.H.] will likely benefit from a highly structured environment that is instrumental in helping him regulate his involvement in negative activities." Maestre determined that J.D.H. would benefit from counseling, treatment of his ADHD and behavioral disruptions, substance abuse treatment, and gang-involvement assessment and possible gang prevention program.
Detective R. Moss testified at the hearing. He provided an account of the offenses in question and the subsequent investigation that identified J.D.H. as a participant in both the aggravated robbery and murder. Through his testimony and other written accounts provided in the hearing record, the State indicated that on the evening of February 27, 2017, Andrea Ojeda, her husband, and their children were filling water jugs at a water station in a parking lot. Ojeda was sitting in the driver's seat of her green Jeep Commander while the jugs were filling when a group of males approached in another vehicle. One of the males displayed a pistol and demanded that Ojeda get out of the vehicle. Ojeda and her husband were able to remove their children from the Jeep, and then another of the males got into the driver's seat of her Jeep and drove off.
Later that same evening, Edward Scott was driving his SUV with his wife, Jessica Mills, and their two young children in his vehicle. A green Jeep Commander backed into Scott's SUV and then fled the scene of the accident. Scott followed the Jeep, which eventually stopped in a parking lot, and Scott pulled next to the Jeep and informed the driver that he had called the police. Scott told police that the driver of the Jeep started to yell, making Mills feel unsafe and leading Scott to drive away. Scott heard gunshots and learned that Mills had been struck by a bullet. Scott told police that he was confident that the driver had fired the shots at his car. Scott was also able to take a picture of the Jeep's license plate, and police determined that it was the same vehicle stolen approximately an hour-and-a-half earlier from Ojeda while she filled her water jugs just a few miles away from the scene of the shooting.
Mills subsequently died from the gunshot wound she sustained following the crash with the stolen Jeep. The State included a copy of her autopsy report in the record, which stated that she died from the gunshot and her death was ruled a homicide. The State also provided several photographs of Mills with her husband and children.
Following an investigation, Detective Moss learned that a police task force was conducting surveillance regarding serial carjackings similar to the one perpetrated on Ojeda. Police eventually arrested some people believed to be involved in either the aggravated robbery of Ojeda or the shooting of Mills. One of the males involved, K.C., told police that he had driven J.D.H. and others to the parking lot where Ojeda was carjacked and then met back up with them later. When they met after the carjacking, J.D.H. was driving the stolen Jeep and had a pistol in his lap. Someone told K.C. not to touch anything in the stolen vehicle because J.D.H. had "caught a body," which Detective Moss testified meant that J.D.H. had killed someone.
Another co-actor, T.G., was questioned by police and eventually identified J.D.H. as the person who drove the stolen Jeep. Detective Ross also interviewed J.D.H. Detective Ross testified that J.D.H. changed his account of events repeatedly and placed blame for both the robbery and the murder on others, including K.C. and T.G. However, Detective Ross also testified that J.D.H. eventually admitted to participating in the aggravated robbery by telling Ojeda to hurry up and get her kids out of the Jeep and by leaving in Ojeda's Jeep.
Detective Ross also testified that he was given the recording of a phone call between J.D.H. and K.C.'s mother, made on March 1, 2017. In this recording, J.D.H. admitted to driving the stolen Jeep, backing into another vehicle, and fleeing because he was driving a stolen vehicle. J.D.H. told K.C.'s mother that T.G. had fired the shots at the other car. However, J.D.H. also stated that he did not believe that the police had any evidence against him, but if they did he would confess. The juvenile court admitted a copy of the phone call into evidence.
J.D.H. called private investigator Charles Marler to testify at the certification hearing. Marler testified that he and his partner conducted an investigation of the underlying offenses and did not find anything "to show that [J.D.H.] shot the victim in this," but they "did find information that [T.G.] did." He testified that they interviewed witnesses, including J.D.H., reviewed the police reports, and listened to the phone call between K.C.'s mother and J.D.H. Dr. Wittig also testified regarding her psychiatric evaluation of J.D.H. and the report she filed with the court.
The juvenile court signed an order waiving its jurisdiction on November 1, 2017. In the four-and-a-half page order, the juvenile court made numerous fact findings. It found that there was probable cause to believe that J.D.H. committed the offenses of murder and aggravated robbery, both first degree felony offenses, as alleged in the petitions; that J.D.H. was fourteen years old at the time he committed the offenses; and that J.D.H. was properly served.
The juvenile court enumerated the factors it considered in making its ruling, including the fact that J.D.H. committed his offenses against "the person of another" in "two separate criminal transactions." It listed the details of the offenses it considered "particularly egregious and aggravating" as including the carjacking of Ojeda and her family, including two young children, and the shooting death of Mills, who was likewise in the car with her family, including two young children. The juvenile court also recited evidence gathered by police during their investigation and the recorded phone call between J.D.H. and K.C.'s mother, noting that J.D.H.'s tone in the phone call was "consistent with someone who committed the murder, but [was] trying to cover it up and blame others" and that he made "tacit admissions that he did it."
The juvenile court expressly stated that it "reviewed and considered the Sophistication and Maturity of [J.D.H.]," and it made specific fact-findings that "the certification evaluation psychological evaluation reports [J.D.H.] is of average criminal sophistication." The juvenile court's findings gave "great weight" to J.D.H.'s level of criminal sophistication, particularly in light of "the recorded phone call [in which J.D.H.] state[d] he would only confess if confronted with the evidence by the police and impl[ied] he would otherwise get away with his crime." The juvenile court also gave greater weight to the facts that his two latest offenses were both crimes against persons and that he had had numerous previous juvenile referrals.
Regarding J.D.H.'s record and previous history, the juvenile court found, in support of discretionary transfer, that J.D.H. "was first referred to juvenile court on 2/13/15 for the offense of Criminal Mischief," and it outlined in detail his subsequent offenses. The juvenile court specifically found that J.D.H. "has now violated his probations again on the [charges for] Burglary of a Motor Vehicle [and] Unauthorized Use of a Motor Vehicle [by] having committed the offenses of Murder and Aggravated Robbery"; that both of those violations of probation were pending with the juvenile court; and that the underlying aggravated robbery and murder charges were J.D.H.'s "6th and 7th referrals for criminal offenses in addition to other referrals for probation non-compliance." The juvenile court also listed twenty-one occasions on which J.D.H. was "written up" for rule violations during the sixth months he was detained in the Juvenile Detention Center, involving behavior such as engaging in physical altercations, making threats, disrupting facility activities, and disrespecting staff.
The juvenile court found that J.D.H. "is believed to be a member of the JACC BOYS clique" and that "[h]e was on Gang Caseload [during previous referrals to the juvenile justice system], but failed to attend the Gang Alternative Prevention Program." The juvenile court also found that J.D.H. had been found unconscious after smoking synthetic marijuana and that he had failed to appear for scheduled appointments following his release from treatment after that episode. It found that he had poor school attendance, that he "had been placed on an ankle monitor [on] 1/12/17, but accumulated 18 curfew violations and it was removed," and that one of the reports filed with the court "lists [J.D.H.] as a 'High' risk to re-offend."
Finally, the juvenile court stated in its order that it "reviewed and considered the Prospects of Adequate Protection of the Public and the Likelihood, if any, of the Rehabilitation of [J.D.H.] by use of the Procedures, Services, and Facilities currently available to the Juvenile Court and based on the above knowledge of the rehabilitative services[.]" It found that J.D.H. "has been previously placed out of his home twice and in the most restrictive probation rehabilitative programs the Court has available on probation, but has returned to court having been referred for more violent and more serious offenses of Murder and Aggravated Robbery." It also found that "the crimes [J.D.H. is] alleged to have committed are so egregious and aggravated that this Court determines based on the offenses and delinquent conduct that he will not be amenable to this Court's further efforts to rehabilitate him."
Based on its findings, "as well as the totality of the evidence presented in the clerk's record, at the hearing, in the written reports, studies, and investigations," it ordered and certified that its jurisdiction be waived and that J.D.H.'s cases be transferred to criminal district court and for J.D.H. to be remanded "for criminal proceedings to be dealt with as an adult in accordance with the Texas Code of Criminal Procedure." This appeal followed.
Sufficiency of the Evidence
In his first issue on appeal, J.D.H. argues that the evidence was legally and factually insufficient to support the juvenile court's finding that there was probable cause to believe that he had committed the offenses as alleged. In his second issue, he argues that the evidence was legally and factually insufficient to support the juvenile court's findings that the welfare of the community required criminal proceedings.
A. Standard of Review
The juvenile court has exclusive continuing jurisdiction over "proceedings in all cases involving the delinquent conduct or conduct indicating a need for supervision engaged in by a person who was a child within the meaning of this title [defined as being between ten and seventeen years of age] at the time the person engaged in the conduct[.]" TEX. FAM. CODE ANN. § 51.04(a) (West Supp. 2017). However, the juvenile court may waive its exclusive jurisdiction under certain circumstances. See id. § 54.02 (West 2014); Moon v. State, 451 S.W.3d 28, 37-38 (Tex. Crim. App. 2014).
Section 54.02 provides:
(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:
(1) the child is alleged to have violated a penal law of the grade of felony;
(2) the child was:
(A) 14 years of age or older at the time he is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substance felony, or a felony of the first degree, and no adjudication hearing has been conducted concerning that offense;
TEX. FAM. CODE ANN. § 54.02(a).
. . . . [and]
(3) after a full investigation and a hearing, the juvenile court determines that there is probable cause to believe that the child before the court 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.
Thus, to waive jurisdiction and transfer a child to the criminal district court, a juvenile court must find that: (1) the child was at least 14 years old at the time of the alleged offense; (2) there is probable cause to believe the child committed the offense; and (3) because of the seriousness of the alleged offense or the background of the child (or both), "the welfare of the community requires criminal proceedings" in the proper adult criminal court. See id.; Moon, 451 S.W.3d at 38. In deciding whether the welfare of the community requires criminal proceedings, the juvenile court must consider four non-exclusive factors:
(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;TEX. FAM. CODE ANN. § 54.02(f).
(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.
It is not necessary that every section 54.02(f) factor weigh in favor of transfer in order for a juvenile court to waive its jurisdiction, and the juvenile court is not required to make any specific findings regarding these factors; however, the order must show that the juvenile court took the section 54.02(f) factors into account. See Moon, 451 S.W.3d at 42 ("[T]he order should . . . expressly recite that the juvenile court actually took the Section 54.02(f) factors into account in making this [waiver] determination. But it need make no particular findings of fact with respect to those factors[.]").
The Court of Criminal Appeals has stated that 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," and that "whenever feasible, children and adolescents below a certain age should be 'protected and rehabilitated rather than subjected to the harshness of the criminal system[.]'" Moon, 451 S.W.3d at 36 (quoting Hidalgo v. State, 983 S.W.2d 746, 754 (Tex. Crim. App. 1999)). If the juvenile court waives jurisdiction, it "shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court." TEX. FAM. CODE ANN. § 54.02(h); Moon, 451 S.W.3d at 38. This means that the order must specify which facts the juvenile court relied upon in making its decision that the seriousness of the offense or the background of the child required criminal proceedings to protect the welfare of the community. See Moon, 451 S.W.3d at 47, 49.
The State has the burden "to produce evidence that persuades the juvenile court, by a preponderance of the evidence, that waiver of its exclusive jurisdiction is appropriate." Id. at 40, 45. "On appeal, we first review the legal and factual sufficiency of the evidence relating to the juvenile court's specific findings of fact regarding the four factors stated in Section 54.02(f)." In re S.G.R., 496 S.W.3d 235, 239 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing Moon, 451 S.W.3d at 47). In reviewing the sufficiency of the evidence on section 54.02(f) factors "and any other relevant historical facts, which are meant to inform the juvenile court's discretion whether the seriousness of the offense alleged or the background of the juvenile warrants transfer for the welfare of the community," we must limit our review to the facts that the juvenile court expressly relied upon in its written order. Moon, 451 S.W.3d at 50.
When reviewing the legal sufficiency of the evidence, we credit the proof favorable to the findings and disregard contrary proof unless a reasonable factfinder could not reject it. In re S.G.R., 496 S.W.3d at 239. If there is more than a scintilla of evidence supporting a finding, then the proof is legally sufficient. Id. When reviewing the factual sufficiency of the evidence, we consider all of the proof presented to determine if the juvenile court's findings are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id.
"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." Id. (citing Moon, 451 S.W.3d at 47). We consider in light of our review of the sufficiency of the evidence whether the juvenile court's decision represents a reasonably principled application of section 54.02 or was essentially arbitrary or made without reference to the statutory criteria for waiver. Moon, 451 S.W.3d at 47. As long as the juvenile court correctly applies these statutory criteria and complies with the requirement to specifically state its supporting findings, its waiver decision generally will pass muster under this standard of review. See id. at 46-47, 49-50.
B. Analysis
We first consider whether the juvenile court's findings are adequately stated and supported by sufficient evidence. The juvenile court may only waive jurisdiction in this case upon finding that: (1) J.D.H. was fourteen years old or older at the time of the alleged offenses; (2) there is probable cause to believe J.D.H. committed the offenses; and (3) the seriousness of the alleged offenses, J.D.H.'s background, or both, requires criminal rather than juvenile proceedings. See TEX. FAM. CODE ANN. § 54.02(a); In re S.G.R., 496 S.W.3d at 238.
J.D.H. does not challenge the trial court's finding on the first element, regarding his age, and the evidence demonstrates that he was fourteen years old at the time of the charged offenses. In his first issue, however, he challenges the legal and factual sufficiency of the trial court's finding that there was probable cause to believe that he committed the offenses as charged.
The juvenile court first considered the offenses themselves and made its findings based on the testimony of Detective Ross regarding his knowledge of the circumstances of the offenses and information discovered during the subsequent investigations. The juvenile court also considered all of the reports and other documents filed, some of which contained information about the charged offenses and the police investigation. It "specifically [found] the following aspects of the [charged offenses] and [J.D.H.'s] alleged participation in them particularly egregious and aggravating":
• Ojeda and her family, including young children, were filling water jugs when they were threatened when J.D.H.'s "co-actor displayed a pistol and demanded [Ojeda] give him everything and ordered her out of the Jeep."
• J.D.H. drove the stolen Jeep away from the scene of the robbery
• "Through the investigation of a string of serial aggravated robberies [T.G.] was developed as a suspect" and T.G. "admitted his part in the aggravated robbery of Ojeda" and "implicated [J.D.H.] as having driven the Jeep away"
• in "a subsequent non-custodial interview," J.D.H. himself "admitted to telling Ojeda to hurry up and get the kids out of the Jeep and to getting into the Jeep with the co-actor after the aggravated robbery."
• a "short time later" on the same day, the Jeep—"the same [vehicle] taken in the earlier aggravated robbery of Ojeda"—struck an SUV carrying Scott, Mills, "and their two young children in the back seat," and the "tried to flee the scene."
• Scott informed the driver of the Jeep that he had called the police and Scott later "stated the driver of the Jeep yelled and that his wife felt unsafe."
• "Scott stated he started to drive off, but heard gunshots. Scott stated he was confident it was the driver who was shooting at his car."
• Mills died as a result of the gunshot wound she sustained in this shooting.
• police interviewed co-actor K.C. who was arrested as a result of police "conducting vehicle surveillance regarding similar serial carjackings," and K.C. "stated he dropped off [J.D.H.] and others in the parking lot where the Aggravated Robbery occurred" and "met back up with them"
a few minutes after the shooting. "[K.C.] stated [J.D.H.] was driving the stolen Jeep and that someone told [K.C.] not to touch anything because [J.D.H.] had just 'caught a body.'" K.C. also "observed a pistol in [J.D.H.'s] lap."
• In the recorded phone call with K.C.'s mother, J.D.H. "admits he was driving the Jeep, backed up into another car, fled because they were in the stolen Jeep, was chased, but that it was [T.G.] who shot at the other car. He also states the police don't have any evidence against him, but if they presented evidence he would confess to it. His tone is consistent with someone who committed the murder, but is trying to cover it up and blame others. He makes tacit admissions that he did it."
• "A co-actor further provided a statement that [J.D.H.] drove the Jeep to the parking lot where [J.D.H.] struck another car and [then] fled. A co-actor stated [J.D.H.] began shooting at the car he struck when the driver (Scott) began yelling at [J.D.H.]."
The record provides evidentiary support for the trial court's findings. The findings set out above are all taken from the testimony of Detective Moss. Moss testified to details of the aggravated robbery as conveyed to police by the complainant Ojeda and the circumstances surrounding the murder as conveyed by Scott, the husband of the complainant in the murder charge. Detective Moss also testified about evidence discovered in the subsequent investigation, including information gleaned from the questioning of J.D.H. himself and his co-actors T.G. and K.C. Finally, the trial court considered the recorded phone call between J.D.H. and K.C.'s mother, which was entered into evidence at the certification hearing.
J.D.H. argues that "[t]here was not ample evidence to establish probable cause in regards to the [charges] herein as the State relies on accomplice witness testimony, in one case[,] and mere presence in the other." He further argues that there was no "direct proof" of his guilt presented to the juvenile court. This argument misconstrues the standard and the evidence here.
The statute does not require "ample" evidence; rather, "the burden is on the State to produce evidence that persuades the juvenile court, by a preponderance of the evidence, that waiver of its exclusive jurisdiction is appropriate." See Moon, 451 S.W.3d at 45; see generally Marcopoulos v. State, 538 S.W.3d 596, 599-600 (Tex. Crim. App. 2017) ("Probable cause exists where the facts and circumstances known to law enforcement officers are 'sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been . . . committed.'") (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1311 (1949)); In re C.C., 930 S.W.2d 929, 933 (Tex. App.—Austin 1996, no writ) (holding, in juvenile certification context, that "[p]robable cause exists where there are sufficient facts and circumstances to warrant a prudent person to believe the suspect committed the offense").
J.D.H. has presented no authority, nor could we discover any, indicating that the trial court was prohibited from considering evidence obtained from an alleged accomplice or co-actor. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005) (providing 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") (emphasis added). The State here presented testimony from sources other than J.D.H.'s co-actors, and it presented evidence of more than J.D.H.'s "mere presence" at the scenes of the offenses. Among other details, the State presented evidence obtained by the police from both Ojeda and Scott and J.D.H.'s own admissions to K.C.'s mother in the recorded phone call and to police in a noncustodial interview. J.D.H. admitted, during a noncustodial interview, that he threatened Ojeda to "hurry up and get the kids out of the Jeep" and left the scene of the robbery in the stolen Jeep.
J.D.H. argues on appeal that this Court must address the law of parties as "the only way for the State of Texas to tie J.D.H. to the cases." See, e.g., TEX. PENAL CODE ANN. § 7.02(a) (West 2011) (setting out circumstances under which person may be held criminally responsible for offense committed by conduct of another). However, as set out above, there was sufficient evidence to establish by a preponderance of the evidence probable cause to believe that J.D.H. participated in the charged offenses as a primary actor. There was some evidence that he made verbal threats to Ojeda while his co-actor brandished a weapon and then drove the stolen Jeep away from the scene of the aggravated robbery and that he fired the shots that killed Mills.
We conclude that there was legally and factually sufficient evidence to support the juvenile court's finding of probable cause to believe J.D.H. committed the offenses as charged. See In re S.G.R., 496 S.W.3d at 238-39; see also Moon, 451 S.W.3d at 46 ("As long as the appellate court can determine that the juvenile court's judgment was based upon facts that are supported by the record, it should refrain from interfering with that judgment[.]").
In his second issue, J.D.H. argues that the evidence was legally and factually insufficient to support the juvenile court's finding that the welfare of the community required criminal proceedings, or as section 54.02 puts it, that "the seriousness of the offense alleged or the background of the child" requires criminal rather than juvenile proceedings to protect the welfare of the community. See TEX. FAM. CODE ANN. § 54.02(a)(3).
Section 54.02(f) provides:
In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:
Id. § 54.02(f).(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.
J.D.H. argues that "the order recites nothing as to why the [juvenile court] reached its decision to waive jurisdiction." However, as we discuss below, the four-and-a-half page order signed by the juvenile court contained numerous findings and recitations of the evidence it relied upon. The juvenile court's order specifically identified the above factors as those it considered, and it made findings relevant to each.
Regarding the nature of the offense, the juvenile court found that both offenses were "against the person of another," that the offenses were committed "in two separate criminal transactions," and that "because [the offenses] were against the person [the Court] gives greater weight in favor of discretionary transfer under this factor." J.D.H. argues that the juvenile court based its findings solely on the seriousness of the charged offenses. However, as discussed above, the juvenile court made findings regarding the specific nature of the offenses. It found that the aggravated robbery was committed against "Andrea Ojeda, her husband, and their two young children"; that a "pistol" was used to threaten Ojeda and her family; that the stolen Jeep was later involved in the accident with Scott, Mills, "and their two young children"; that J.D.H. fired shots at Scott's vehicle containing four passengers; and that one of those shots struck Mills, killing her. The trial court also found that the police investigation of this case intersected with its investigation of "similar serial carjackings" or "a string of serial aggravated robberies." As discussed above in our analysis of the probable cause prong, the record supports these findings of fact.
Regarding the sophistication and maturity of J.D.H., the trial court found:
• J.D.H. "is currently 15 years of age."
• "the certification evaluation psychological evaluation reports [that J.D.H.] is of average criminal sophistication."These findings are likewise supported by the record. The record contained a stipulation as to J.D.H.'s age, copies of numerous reports prepared in anticipation of J.D.H.'s certification hearing, including the psychological evaluation of Maestre, the recording of the phone call between J.D.H. and K.C.'s mother, and the testimony of Detective Moss that J.D.H. gave inconsistent accounts of events and repeatedly changed his answers to police questions when confronted with contradictory evidence.
• J.D.H. "provided several differing statements to homicide officers in an effort to avoid prosecution" and the juvenile court gave "great weight to this level of criminal sophistication."
• the recorded phone call, in which J.D.H. stated "he would only confess if confronted with the evidence by the police and implie[d] he would otherwise get away with his crime," also warranted giving "great weight to this level of criminal sophistication."
J.D.H. argues that the record also demonstrated that Maestre determined that his cognitive and intellectual abilities were below average; that, academically, he was functioning at a third or fourth grade level; and that his maturity level was below average. He further cites Dr. Wittig's testimony that J.D.H. demonstrated "borderline intellectual functioning" impacting his ability to "digest" information. The trial court did not make any findings regarding this evidence in its order. Nevertheless, considering all of the evidence presented, we cannot say that the juvenile court's finding that J.D.H. demonstrated a level of criminal sophistication that weighed in favor of transfer is so against the great weight and preponderance of the proof as to be clearly wrong and unjust. See id.In re S.G.R., 496 S.W.3d at 239.
Regarding J.D.H.'s record and previous history, the trial court found this factor "in support of discretionary transfer," specifically finding:
• J.D.H.'s first referral to juvenile court was on February 13, 2015 "for the offense of Criminal Mischief in which he threw a rock multiple times at a vehicle belonging to a female, causing damage."
• After his release from that offense, J.D.H. was referred again on May 17, 2015 for burglary of a motor vehicle and "was found to be in need of rehabilitation, placed on 1 year probation on 6/30/2015, and placed into the custody of the Chief Juvenile Probation Officer (Brief Intervention Unit/Burnet Bayland Reception Center Phoenix Unit from 6/30/15-11/4/15)."
• J.D.H. violated that probation by committing new offenses—evading arrest and felony unauthorized use of a motor vehicle—and was again "found to be in need of rehabilitation, placed on 2 years probation . . . on 7/7/16 and [detained] at the Harris County Leadership Academy where he stayed until 12/21/16."
• J.D.H. also committed the misdemeanor offense of evading arrest on foot in Fort Bend County.
• J.D.H. "has now violated his probations again . . . having committed the offenses of Murder and Aggravated Robbery" and "these are [J.D.H.'s] 6th and 7th referrals for criminal offenses in addition to other referrals for probation non-compliance."
• J.D.H. "has been written up" twenty-one times between April 6, 2017, and September 27, 2017, while "being detained for the offenses of
Murder, Aggravated Robbery, Violation of Probation-Burglary of a Motor Vehicle and Violation of Probation-Unauthorized Use of a Motor Vehicle."These findings are all supported by the reports and records admitted into evidence at the certification hearing.
• J.D.H. is "believed to be a member of the JACC BOYS clique" but "failed to attend the Gang Alternative Prevention Program."
• J.D.H. had used marijuana
• J.D.H.'s school attendance is "poor."
• J.D.H. "had been placed on an ankle monitor [on] 1/12/17, but accumulated 18 curfew violations and it was removed."
• "The PACT report lists [J.D.H.] as a 'High' risk to re-offend."
Finally, regarding 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" the juvenile court found in favor of discretionary transfer, "based on the above [findings of fact] and its knowledge of the" available rehabilitative services. It specifically found that J.D.H. "has been previously placed out of his home twice and in the most restrictive probation rehabilitative programs the Court has available" but "has returned to court having been referred for more violent and more serious offenses of Murder and Aggravated Robbery." The juvenile court also found that the charged offenses "are so egregious and aggravated that this Court determines that based on the offenses and delinquent conduct that [J.D.H.] will not be amenable to this Court's further efforts to rehabilitate him."
J.D.H. argues that both his psychiatric evaluation by Dr. Wittig and the psychological evaluation by Maestre "recommended various programs available through the Harris County Juvenile Probation Department ("HCJPD") or through Texas Juvenile Justice ("TJJD") that would assist in rehabilitating" him. However, as the juvenile court's order found, J.D.H. had twice been detained in similar rehabilitative facilities but nevertheless re-offended with increasingly serious and violent crimes. The reports indicated that J.D.H. repeatedly violated the terms of his probations, and during his detention for the underlying offenses, he committed numerous violations of the facility's rules. Thus, even considering all of the evidence presented, we cannot say that the juvenile court's finding on this factor is so against the great weight and preponderance of the proof as to be clearly wrong and unjust. See id.
We conclude that the evidence was legally and factually sufficient to support the trial court's findings that the welfare of the community required criminal proceedings.
Having determined that the trial court's findings are supported by sufficient evidence, we now review the ultimate waiver decision to determine whether the juvenile court abused its discretion. See id. (citing Moon, 451 S.W.3d at 47). In light of our review of the sufficiency of the evidence, it appears that the juvenile court's decision represents a reasonably principled application of the section 54.02 elements. The trial court made findings on each relevant factor, as outlined above, determining that each factor weighed in favor of its discretionary transfer of J.D.H. to criminal court. We cannot say that the juvenile court's decision was essentially arbitrary or made without reference to the statutory criteria for waiver. See Moon, 451 S.W.3d at 46-47. Rather, the juvenile court correctly applied the statutory criteria and complied with the requirement to specifically state its supporting findings. Accordingly, we conclude that the juvenile court did not abuse its discretion. See id. at 49.
We overrule J.D.H.'s first and second issues on appeal.
Conclusion
We affirm the order of the juvenile court.
Evelyn V. Keyes
Justice Panel consists of Justices Jennings, Keyes, and Higley.