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In re D.L.C.

Court of Appeals of Texas, Sixth District, Texarkana

March 21, 2017

IN THE MATTER OF D.L.C., A JUVENILE

          Submitted: November 22, 2016

         On Appeal from the County Court at Law No. 1 Hunt County, Texas Trial Court No. J-02402

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Ralph K. Burgess Justice

         D.L.C.[1] appeals from a juvenile court's order certifying him to be tried as an adult for one count of sexual assault and one count of aggravated sexual assault. On appeal, D.L.C. argues that (1) the juvenile court failed to properly set out its findings of fact in its order granting transfer, and (2) the evidence was legally and factually insufficient to support the order transferring the case to district court. We affirm.

         I. Background

         On November 4, 2015, Cindy and Joe Black arrived at the Hunt County Sheriff's Office and spoke with Joel Gibson, an investigator. The purpose of the Blacks' visit was to file a report alleging that D.L.C. had sexually assaulted their daughter, Jane, [2] in July 2014. During their meeting, the Blacks provided Gibson with D.L.C.'s contact information, and Cindy prepared and signed an affidavit.[3] Less than two weeks later, Jane met with Charlene Green, a forensic interviewer at the Hunt County Child Advocacy Center (CAC). Jane's account of the incident was consistent with the facts contained in Cindy's affidavit.

         On December 2, Jane met with Kim Bassinger, a sexual assault nurse examiner, and she submitted to a sexual assault medical forensic examination. On that same day, Gibson attempted to contact D.L.C. for the purpose of interviewing him about the incident. Gibson also attempted to contact D.L.C. on December 11. After failing to contact D.L.C. by telephone, Gibson went to D.L.C.'s home to make contact and schedule an appointment with him. On January 6, 2016, Gibson spoke with D.L.C. at Gibson's office. During the conversation, D.L.C. admitted he had had sexual relations with Jane but he claimed it was consensual.

         On that same day, Gibson spoke with Seth Stevens, the young man who had received Jane's text message explaining she had been sexually and physically assaulted.[4] Stevens prepared an affidavit and provided it to Gibson on January 11. In addition to speaking with Stevens, Gibson interviewed Chad Cline on January 12, who also prepared an affidavit.[5] Gibson concluded his investigation and, on January 14, submitted a paper referral to the Hunt County Juvenile Probation Office, alleging that D.L.C. had committed aggravated sexual assault. On January 27, the paperwork, along with a request for an adjudication petition, was sent to the County Attorney's Office of Hunt County. Gibson conceded that he was aware at the time he began his investigation that D.L.C. was seventeen years old and would turn eighteen in three months.[6]

         On February 18, 2016, the State filed its original adjudication petition against D.L.C., alleging that he had committed the offense of aggravated sexual assault.[7] The petition stated that D.L.C. was sixteen years of age at the time of the alleged offense, but that he was seventeen years of age at the time the petition was filed. About a week later, the State filed its original adjudication petition seeking a determinate sentence setting forth substantially the same allegations as it had in its first petition; however, the offense charged was sexual assault.[8] On April 16, 2016, the State filed its petition for discretionary transfer to criminal court, alleging that D.L.C. had committed aggravated sexual assault.[9] The trial court then issued an order to complete a diagnostic study, a social evaluation, and a full investigation.

         Approximately one month later, the trial court received the report of Robert Lackey, Ph.D., who had conducted a psychological evaluation of D.L.C. Lackey's report stated, among other things,

With respect to [D.L.C.]'s Risk of Dangerous [sic], data collected in this evaluation revealed he is likely in the Moderate range of Risk as compared to other juvenile offenders. Results of this evaluation indicated [D.L.C] does not have a history of severe antisocial behavior. He noted that he has previously received "two or three" speeding tickets, a ticket for Disorderly Conduct - Fighting and was recently charged with possession of Alcohol and a "Marijuana pipe." He noted that when he was younger, approximately twelve years of age, that he was placed in detention for "Assault. . . . "
[D.L.C] did not report a history of engaging in unprovoked violent behavior; however, records provided by Glen Oaks, a local psychiatric facility, noted [D.L.C.] was hospitalized for assaulting his father's pregnant girlfriend by kicking her in the stomach. Throughout the psychiatric records are indications of "out of control behaviors, outbursts of anger, agitation and damage to property, reportedly "punching the walls of the home."
. . . .
[D.L.C.] appears to have demonstrated less serious violence toward individuals, noting the previous physical fight he was cited for and the previous "assault" which caused him to be placed in detention at twelve years of age. Reportedly these encounters were not serious and did not result in serious bodily injury. [D.L.C.] also appears to have previous minor criminal acts. Records revealed a history of reported suicidal and homicidal ideation and accompanying psychiatric hospitalization due to these thoughts of self[-]harm and intentions of harming others.
. . . .
As compared to same aged peers who are also juvenile offenders or are also involved with the juvenile judicial system in some manner, [D.L.C.] is at the High range of Sophistication and Maturity.
. . . .
As compared to other juvenile offenders, [D.L.C.] appears to be in the Low range as to his treatment amenability. [D.L.C.]'s responses to various questionnaires and other psychological tools revealed he currently is not reporting symptoms of any mental health disorder. . . .
. . . .
[D.L.C.]'s responses to the PAI-A revealed an interest in and motivation for treatment which is below average in comparison to adolescents who are not being seen in a therapeutic setting and his treatment motivation is a great deal lower than is typical of individuals being seen in treatment settings. His responses suggest that he is satisfied with himself as he is, that he is not experiencing marked distress, and that, as a result, he sees little need for changes in his behavior. However, [D.L.C.] does report a number of strengths, namely his family and boss; that augur well for a relatively smooth treatment process if he were willing to make a commitment to treatment. His responses revealed he may not be experiencing sufficient distress to feel that treatment is warranted.

         On July 7, 2016, the State filed its first amended petition for discretionary transfer to criminal court alleging one count of aggravated sexual assault and one count of the lesser-included offense of sexual assault. On July 22, 2016, approximately six weeks after D.L.C.'s eighteenth birthday, the trial court held a hearing on the State's first amended petition for discretionary transfer. The trial court considered, among other things, "written reports from the probation officer, professional court employees and professional consultants in addition to the testimony of witnesses . . . ." At the conclusion of the transfer hearing, the trial court granted the State's amended petition, finding that, among other things, (1) "there [was] probable cause to believe that [D.L.C.] committed the offense as alleged based on testimony of Joel Gibson and Isaac Neal[10]and all the other evidence admitted during the hearing" and (2) "[f]or a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday of [D.L.C.]." This appeal followed.

         II. Discussion

         The juvenile court has exclusive, original jurisdiction over children sixteen years of age or younger. Tex. Fam. Code Ann. § 51.04(a) (West Supp. 2016). Only after the State files a petition requesting waiver and transfer may the juvenile court discretionarily transfer, such as this case, to district court for criminal proceedings. Tex. Fam. Code Ann. § 54.02(b) (West 2014). A certification hearing is not a trial on the merits of the alleged offense.[11] State v. Lopez, 196 S.W.3d 872, 874 (Tex. App.-Dallas 2006, pet. ref'd). During the hearing, the court may not consider guilt or innocence, but only whether the child's and society's best interests would be better served by allowing the case to remain in juvenile court or by transferring the case to district court. Id. The hearing is much like a probable cause hearing, and the trial court is not required to resolve evidentiary conflicts beyond a reasonable doubt. Id. Probable cause exists when there are sufficient facts and circumstances to warrant a reasonably prudent person to believe that the accused committed the alleged offense. Grant v. State, 313 S.W.3d 443, 445 (Tex. App.-Waco 2010, no pet.).

         A. The Trial Court Did Not Err in Considering Section 54.02(j) Factors

         Despite the fact that he was eighteen years of age at the time of the hearing, D.L.C. maintains that the juvenile court was required to consider the factors contained in Section 54.02(f) of the Family Code. Kent v. United States, 383 U.S. 541 (1966); Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014).[12] The State responds that the juvenile court was not required to consider the factors listed in Section 54.02(f) and that it properly considered the factors contained in Section 54.02(j). We agree.

         Section 54.02 establishes two procedures for discretionary transfer of juvenile proceedings to district court. Tex. Fam. Code Ann. § 54.02 (West 2014). Section 54.02(a) applies where the juvenile is less than eighteen years of age at the time of the transfer hearing. See Tex. Fam. Code Ann. § 54.02(a). Section 54.02(j) applies where the juvenile is eighteen years old at the time of the transfer hearing. The factors listed in Section 54.02(f) are not applicable to a discretionary transfer under Section 54.02(j). Tex. Fam. Code Ann. § 54.02(f) (In making the determination required by Subsection (a) of this section, the court shall consider . . . .").

         When an individual turns eighteen years of age pending resolution of a petition for discretionary transfer for a crime allegedly committed when he was sixteen years of age, the State is required to proceed under the statutory subsection applicable when the person to be certified is eighteen years of age or older (Section 54.02(j)), and not the subsection applicable when the person is under the age of eighteen (Section 54.02(a)). Matter of M.A.V., 954 S.W.2d 117, 118 (Tex. App.-San Antonio 1997, pet. denied). This is so whether or not the first petition for waiver of jurisdiction was brought when the person was under eighteen ...


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