Court of Appeals of Texas, Sixth District, Texarkana
Submitted: November 22, 2016
Appeal from the County Court at Law No. 1 Hunt County, Texas
Trial Court No. J-02402
Morriss, C.J., Moseley and Burgess, JJ.
K. Burgess Justice
D.L.C. 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.
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,  in July 2014. During their meeting, the
Blacks provided Gibson with D.L.C.'s contact information,
and Cindy prepared and signed an affidavit. 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.
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.
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. 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. 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.
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. 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. 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. The trial court then issued an order to
complete a diagnostic study, a social evaluation, and a full
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
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.
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 Nealand 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.
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. 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.).
Trial Court Did Not Err in Considering Section 54.02(j)
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). 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.
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 . . . .").
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 ...