Opinion
06-21-00075-CV
02-10-2022
IN THE MATTER OF T.C., A JUVENILE
Submitted: January 25, 2022
On Appeal from the 276th District Court Marion County, Texas Trial Court No. J21001
Before Morriss, C.J., Stevens and Carter, [*] JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Josh R. Morriss, III Chief Justice
In this appeal, T.C. challenges the juvenile court's order waiving jurisdiction and transferring his case to a criminal district court for trial as an adult on charges of aggravated assault and burglary of a habitation. T.C. argues that the juvenile court erred in considering written materials that were not filed in a timely manner and that the evidence is factually insufficient to support the juvenile court's findings favoring the decision to transfer the case. Because we conclude that (1) T.C. failed to preserve his first point of error and (2) the juvenile court's decision was supported by factually sufficient evidence, we affirm the juvenile court's order.
See Tex. Fam. Code Ann. § 54.02 (Supp.).
When he was sixteen, T.C. allegedly broke into Austin Griffin's home and shot him with a firearm. The State alleged that T.C. committed felony offenses of burglary of a habitation and aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02 (Supp.), § 30.02(d). Because the offense was not adjudicated, the State petitioned the juvenile court for a discretionary transfer to a criminal court.
At the transfer hearing, Terri Burden, T.C.'s juvenile probation officer, testified that T.C. was first placed on probation for burglary of a vehicle, did not do well while on probation, and was eventually charged with criminal mischief for damaging his ankle monitor. T.C. stopped attending school, allegedly committed the underlying offenses of burglary of a habitation and aggravated assault, and absconded for approximately five months. Burden testified that T.C. eventually turned himself in and remained in juvenile detention. Even so, Burden believed that T.C. was a flight risk.
Austin Kyle Griffin testified that, on the day of the incident, he returned to his apartment with his wife and found that the back door had been forced open and his "shotgun was leaning up against [the] patio table." Griffin said that, as he reached for the shotgun, he saw T.C., whom he knew, point a handgun in his direction. According to Griffin, T.C. "said the word 'Boom' right before he shot" towards Griffin. Griffin testified that one bullet pierced his left arm, that he heard another round fire, and that he and his wife ran away from the apartment complex, escaping T.C. Griffin said that a rod-with plates and screws-was used in a surgery to repair his arm, but that it had not healed properly. He testified that a 9-millimeter pistol was missing from his apartment and was never found.
During cross-examination, Griffin testified that he sold marihuana, that T.C.'s friends may have purchased marihuana from him, but that he had never sold marihuana to T.C.
Dustin Hayes, an officer with the Jefferson Police Department, testified that he investigated the scene of the accident and found two 9-millimeter casings. Hayes, who knew T.C. because of his prior burglary of a vehicle, testified that T.C. did not have a reputation for being a law-abiding citizen and that he knew T.C. to "get into trouble when . . . unsupervised." Hayes believed that T.C.'s utterance of the word "boom" prior to shooting demonstrated "cold-bloodedness." Hayes, who knew of T.C.'s history within his community, had warned T.C. about his behavior many times both in "formal setting[s] . . . [and] out about on the street." He had also seen a photo of T.C. with a weapon on Facebook inviting people who had a problem with him to confront him. Hayes testified that the community would be better served if T.C. were tried as an adult.
Burden testified that T.C. was diagnosed with conduct disorder and moderate cannabis use disorder. T.C.'s psychological evaluation stated that "[t]he frontal lobe of the brain, which is responsible for higher-level thinking, planning, and impulse control is not fully mature until approximately 25 years of age" and that adolescents like T.C. "should not be considered capable of decision-making to the same degree that would be expected of an adult." Because Burden concluded in the evaluation that T.C. "should not be considered mature enough to suffer the consequences that would be placed on an adult," he recommended that the juvenile court consider "placement in a facility that would allow him to earn his GED or diploma" and "to explore vocational training." Even so, Burden stated in his evaluation that T.C.'s "prognosis for improving level of function [was] guarded," that he needed "firm and consistent limits for his actions," and that he would benefit from "a counsellor or mentor who could help him learn important societal rules." Burden's social evaluation investigation report was also submitted to the juvenile court.
After considering the evidence, the circumstances of the offenses, and T.C.'s circumstances, the juvenile court concluded that there was "probable cause to believe that the child committed the offenses as alleged" and that, given the "seriousness of the offenses and the background of the child . . ., the welfare of the community require[d] that criminal proceedings proceed in criminal court."
(1) T.C. Failed to Preserve His First Point of Error
At a transfer hearing, a juvenile court "may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses." Tex. Fam. Code Ann. § 54.02(e). "At least five days prior to the transfer hearing, the court shall provide the attorney for the child and the prosecuting attorney with access to all written matter to be considered by the court in making the transfer decision." Id.
At the hearing, the State introduced "a social evaluation investigation report prepared by the Juvenile Probation Department" and "a psychological evaluation . . . that was provided to the Court." Although T.C.'s counsel noted that he was provided with the social evaluation only thirty minutes before the hearing and that it had not been filed until two days before the hearing, he did not object to the social evaluation or to any other written reports. As for the psychological evaluation, the record is unclear as to when it was provided to counsel, counsel did not object to it or argue that it was untimely, and counsel instead referred to the contents of the psychological evaluation when cross-examining Burden. Also, counsel did not seek a continuance or argue that he needed additional time to review the four-page social evaluation or the four-page psychological evaluation.
The juvenile court's order recited that it had "complied with the five day requirement prior to the hearing in making available to [T.C.'s] attorney of record[] all written materials to be considered by the Court in making [the] transfer decision." On appeal, T.C. argues that the juvenile court's finding that it complied with Section 54.02(e) is incorrect and that, as a result, "the evidence is factually insufficient to support the finding of statutory compliance." The State argues that the issue is not preserved, and we agree.
T.C., attempting to circumvent the preservation-of-error requirement, has characterized this issue as a sufficiency complaint. He has cited no cases that reviewed a finding under Section 54.02(e) for factual sufficiency.
"As a prerequisite to presenting a complaint for appellate review, the record must show that" it "was made to the trial court by a timely request, objection, or motion that . . . stated the grounds for the ruling . . . with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context and" that either the trial court "ruled on the request, objection, or motion, either expressly or implicitly" or "refused to rule on the request, objection, or motion, and the complaining party objected to the refusal." Tex.R.App.P. 33.1(a). This error preservation rule applies to complaints under Section 54.02(e). J.I.G. v. State, No. 14-20-00459-CV, 2021 WL 208604, at *1 (Tex. App.-Houston [14th Dist.] Jan. 21, 2021, no pet.); see In re A.R.G., 612 S.W.3d 691, 694 (Tex. App.- Texarkana 2020, pet. denied).
Counsel did not raise the timeliness of the psychological evaluation or object to its admission. While counsel referenced Section 54.02(e) with respect to the social evaluation investigation report, he did not object to its admission on that basis. The juvenile court was not asked for and did not rule on any request for relief with respect to the written documents. Because counsel did not object to the juvenile court's consideration of the written documents and failed to either seek or secure an adverse ruling, we find that T.C. failed to preserve his first issue on appeal. As a result, we overrule this point of error.
(2) The Juvenile Court's Decision Was Supported by Factually Sufficient Evidence
"The State has the burden to persuade the juvenile court by a preponderance of the evidence that the welfare of the community requires transfer of jurisdiction for criminal proceedings, either because of the seriousness of the offense or the background of the child (or both)." In re A.K., No. 02-20-00410-CV, 2021 WL 1803774, at *19 (Tex. App.-Fort Worth May 6, 2021, pet. denied) (mem. op.) (citing In re K.W., No. 02-19-00323-CV, 2020 WL 98144, at *3 (Tex. App.-Fort Worth Jan. 9, 2020, no pet.) (mem. op.)). In making the decision to transfer, the juvenile court considers
(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.Tex. Fam. Code Ann. § 54.02(f). "The factors in Section 54.02(f) are nonexclusive factors . . . and any combination of these criteria may suffice to support a waiver of jurisdiction and transfer." In re C.O., No. 02-21-00235-CV, 2021 WL 5933796, at *5 (Tex. App.-Fort Worth Dec. 16, 2021, pet. filed) (mem. op.). Also, "[t]he statute requires only that the court consider the factors listed; it does not mandate that any particular factor be true, or limit the purpose for which the factors may be considered." In re Z.T., No. 05-21-00138-CV, 2021 WL 3645103, at *13 (Tex. App.-Dallas Aug. 17, 2021, pet. denied) (mem. op.) (citing Ex parte Thomas, 623 S.W.3d 370, 382 (Tex. Crim. App. 2021)). "The court is also not required to give each of the factors equal weight." Id. (citing In re J.J., 916 S.W.2d 532, 535 (Tex. App.-Dallas 1995, no writ)).
"Our review of a transfer order is two pronged." In re A.K., 2021 WL 1803774, at *18. "First, we review the juvenile court's specific findings of fact regarding the Section 54.02(f) factors under 'traditional sufficiency of the evidence review.'" Id. (quoting In re C.M.M., 503 S.W.3d 692, 701 (Tex. App.-Houston [14th Dist.] 2016, pet. denied)). "Under a factual sufficiency challenge, we consider all the evidence presented to determine if the juvenile court's findings are against the great weight and preponderance of the evidence so as to be clearly wrong and unjust." Id. (citing In re C.M.M., 503 S.W.3d at 701); see In re Z.T., 2021 WL 3645103, at *8 ("Where, as here, we have a record from the hearing, we may review the entire record to determine whether the facts elicited sufficiently support the juvenile court's stated reason or reasons for the transfer.").
"Second, we review the juvenile court's waiver decision for an abuse of discretion." In re A.K., 2021 WL 1803774, at *18 (citing In re C.M.M., 503 S.W.3d at 701). In other words, in deciding whether the juvenile court erred to conclude that the seriousness of the offense alleged or the background of the juvenile or both called for criminal proceedings for the welfare of the community, we simply ask, 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, whether the juvenile court acted without reference to guiding rules or principles. Id. (citing In re C.M.M., 503 S.W.3d at 701). "A juvenile court abuses its discretion when its transfer decision is essentially arbitrary, given the evidence upon which it was based." Id. (citing In re C.M.M., 503 S.W.3d at 701). "By contrast, a waiver decision representing 'a reasonably principled application of the legislative criteria' generally will pass muster under this standard of review." Id. (quoting In re C.M.M., 503 S.W.3d at 701).
As for the first Section 54.02(f) factor, the alleged offenses were against both property and person. Because T.C.'s offense against a person resulted in a shooting, the offenses weighed heavily in favor of transfer.
As to the second factor, the juvenile court entered the following findings:
10. The Court considered the sophistication and maturity of the child and finds that Respondent is sophisticated and mature under the code based on the following facts presented at the hearing: The child was on probation for a prior burglary of a vehicle and had a new charge of criminal mischief at the time of this offense. He had stopped attending classes and had posted threats and pictures on his phone related to violence. After these alleged offenses he absconded for several months before surrendering himself to authorities. Also, these alleged offenses required preparation and resulted in the shooting of a person that the child did not know under circumstances which showed a clear intent.
T.C.'s psychological evaluation stated that, as a result of his age, he was not fully mature and should not be made to suffer the same consequences as an adult. The juvenile court uttered this paraphrase of the psychological evaluation in seeking to clarify the evaluation's meaning: "[I]f you haven't reached the age of majority then there's never an instance where you should be certified as an adult." Yet, "because the statute authorizes the transfer of juveniles as young as fourteen years of age, nothing in the statute can be read to suggest that a finding that [a juvenile] ha[s] a level of sophistication and maturity on par with other [children his age] should weigh against transfer." In re Z.T., 2021 WL 3645103, at *14 (citing In re E.D.N., 635 S.W.2d 798, 801 (Tex. App.-Corpus Christi 1982, no writ)).
Also, "[i]n assessing maturity and sophistication, courts place weight on whether there is evidence indicating the juvenile knew right from wrong." In re Z.T., 2021 WL 3645103, at *14 (citing In re K.J., 493 S.W.3d 140, 151 (Tex. App.-Houston [1st Dist.] 2016, no pet.)). The juvenile court noted, and the record showed, that T.C. absconded after committing the alleged offenses. From this fact, the juvenile court could have concluded that T.C. was aware that his actions were wrong. T.C. also demonstrated maturity when, after further reflection, he turned himself in. As a result, we find that the juvenile court's finding on the second Section 54.02(f) factor was supported by factually sufficient evidence.
Turning to the remaining factors, the juvenile court wrote the following:
11. The Court considered the record and previous history of the child and the
prospects of adequate protection of the public and the likelihood of rehabilitation of the child by use of procedures, services and facilities currently available to the juvenile court and the Court finds that the procedures, services, and facilities currently available to the juvenile court will not likely rehabilitate Respondent due to the fact that: the child has not responded well to previous attempts to correct his behavior and to teach him that there can be consequences for his actions. He has refused to go to school and refused to comply with his conditions of probation. His latest actions have resulted in serious bodily harm to a person he did not know and the public needs to be protected from this type of behavior.
The juvenile court noted T.C.'s other history, including that he was on probation for burglary of a vehicle, had committed criminal mischief, had posted photos of himself with a weapon on Facebook while inviting confrontation from others, had stopped attending school, and had absconded for several months while on probation. Hayes testified that he had warned T.C. multiple times to straighten out his behavior both in formal settings and while seeing him on the street. The record also showed that T.C. had been diagnosed with conduct disorder and used marihuana.
The third factor of Section 54.02(f) also "serve[s] to facilitate the juvenile court's balancing of the potential danger to the public posed by the particular juvenile offender with his amenability to treatment." In re T.L., No. 02-19-00200-CV, 2019 WL 4678565, at *6 (Tex. App.-Fort Worth Sept. 26, 2019, no pet.) (mem. op.). The juvenile court found that T.C. needed to be taught that there were consequences to his actions and that his latest actions showed that the public needed to be protected from him. T.C's psychological evaluation noted that his "prognosis for improving level of function [was] guarded" and that he needed "firm and consistent limits for his actions." The juvenile court also found that T.C. had not responded well to prior opportunities to modify his behavior and had refused to go to school or comply with the terms of his probation. Also, T.C. was seventeen at the time of the hearing, and that was "particularly relevant . . . because the resources of the juvenile court are designed to assist and rehabilitate juveniles, not adults." In re Z.T., 2021 WL 3645103, at *13 (citing In re H.Y., 512 S.W.3d 467, 478 (Tex. App.-Houston [1st Dist.] 2016, pet. denied)). We find that the juvenile court's findings on the third and fourth factors of Section 54.02(f) were supported by factually sufficient evidence. See In re J.C.B., No. 14-18-00796-CV, 2019 WL 758403, at *8 (Tex. App.-Houston [14th Dist.] Feb. 21, 2019, no pet.) (mem. op.) ("looking at the repeated failures of prior rehabilitative measures in finding the evidence sufficient to support the juvenile court's decision with regard to section 52.02(f)(4)") (citing In re K.J., 493 S.W.3d at 154).
The circumstances of the offenses also weighed heavily in favor of the transfer. The evidence showed that T.C. used marihuana and that Griffin sold marihuana. The juvenile court determined that T.C.'s burglary was premeditated, which weighed in favor of transfer. See In re Z.T., 2021 WL 3645103, at *14. T.C. broke into a habitation, armed himself, and fired two rounds toward Griffin, seriously injuring him. Hayes testified that T.C.'s utterance of the word "boom" displayed cold-bloodedness.
After reviewing all the evidence, we cannot find that the juvenile court's findings under Section 54.02(f) were against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. As a result, we overrule T.C.'s complaint that these findings were not supported by factually sufficient evidence.
On this record and in light of these findings, we cannot say that the juvenile court's decision was arbitrary or made without reference to guiding rules. Instead, the decision resulted from a principled application of legislative criteria after careful consideration of the surrounding facts and circumstances. Accordingly, we find no abuse of discretion in the juvenile court's decision to waive jurisdiction and transfer the case to a criminal district court.
We affirm the juvenile court's order of transfer.
[*] Jack Carter, Justice, Retired, Sitting by Assignment