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In re G.B.

Court of Appeals of Texas, Second District, Fort Worth

July 6, 2017






         I. Introduction

         Appellant G.B. was fourteen years old when he allegedly got high and participated in an aggravated robbery that resulted in the shooting death of Eusebio Bernardo-Fernando, known as Chevo. During the early morning hours of March 6, 2016, nineteen-year-old Antonio Segura entered Chevo's store and shot him in the back of the head. Segura then let G.B. and another nineteen-year-old, Fernando Marines, inside the store, and the trio then began to loot the place. Several months later, in August, the murder's lead investigator located G.B. while he was in custody and added capital murder to an unrelated burglary charge already pending against him.

         In one issue, G.B. appeals the juvenile court's decision to transfer him to a district court to be tried as an adult in criminal proceedings for the capital murder. We affirm.

         II. Background

         Unfortunately, the facts of this case are not uncommon. See, e.g., Moon v. State, 451 S.W.3d 28, 31-32 (Tex. Crim. App. 2014) (describing the disadvantaged upbringing and fractured family life of the sixteen-year-old juvenile appellant accused of murder); Matthews v. State, 513 S.W.3d 45, 51, 60 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) (describing sixteen-year-old juvenile appellant, who had a criminal history showing escalating behavior from physical assault, thefts, and credit card abuse before he was accused of murdering his pregnant girlfriend); Matter of C.M.M., 503 S.W.3d 692, 696, 703-04 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) (describing fourteen-year-old juvenile appellant's unstable childhood involving poverty, foster care, and drug use before he was accused of murdering his pregnant mother).

         Fort Worth Police Detective Matt Anderson, a certified peace officer for over seventeen years and the lead investigator on the case, and Chris Shahan, a supervisor with the Tarrant County Juvenile Probation Department, were the State's only witnesses at G.B.'s certification hearing. The rest of the State's evidence came from the evaluations ordered by the juvenile court, which contained information from G.B.'s grandmother and G.B. along with that of the professionals who evaluated G.B.'s mental and physical health.

         A. G.B.'s Background

         G.B. and his family lived below the poverty level, his parents used drugs and spent time in and out of jail, and he and his brothers spent a year in foster care after Child Protective Services found "reason to believe" neglectful supervision by his parents. G.B.'s maternal grandparents had conservatorship of G.B., who was placed with them due to his parents' drug and criminal history.[1]G.B.'s grandmother indicated that G.B.'s mother was an enabler who allowed G.B. to do as he pleased with no discipline. She reported that this had led G.B. to want to act like he was an adult who did not need to follow rules, abide by curfew, or go to school. G.B.'s grandfather had medical issues that put a strain on the household, and G.B. took advantage of his elderly grandparents.[2]

         By the time G.B. was twelve he had already received his first referral to the Juvenile Probation department-for engaging in two counts of organized crime, one count of theft of property over $500, and criminal mischief over $500. With regard to that referral, in November 2014, G.B. was placed on deferred prosecution probation, but within three months he violated his probation conditions by failing to attend a drug abuse program.

         Six months later and during the twelve months that followed, G.B. was tardy to school, skipped school, was suspended from school, was sent to in-school detention, saw his grades drop, and had gone to school under the influence of drugs. Although he acknowledged that his grandparents were often upset with him over his behaviors, G.B. did not consider his behaviors at school to be a problem. G.B. had a history of coming and going from his grandmother's home as he pleased, and by November 2015, he left his grandmother's home to live with friends. Around that time, G.B. also received a referral for possession of marijuana, less than two ounces. He failed to appear for his scheduled adjudication hearing, but on April 19, 2016-just over a month after Chevo's murder-he received community-based detention for this offense.

         B. The Murder and Initial Investigation

         At 4:53 a.m. on March 6, 2016, a 911 caller reported that a possible burglary was in progress at a location he described as "Chevo's Tire Shop."[3] The patrol officers who arrived on the scene were met by the 911 caller, Eduardo Rivas, who flagged them down and directed them to the business premises. When the officers entered the building, they found[4] a large amount of blood, blood smears, bloody footprints, scattered property, and then, finally, Chevo's body. Chevo's face and torso were covered in blood, and although at first the responding officers were not certain if he had been shot, it was clear to them at that point that he was deceased. To the detectives who arrived approximately an hour and a half later, the blood pooling and smears indicated that either his body had been moved or that a second body had been present and moved. According to the officers, the place had been "ransacked"-at least one door had been kicked in, glass was broken, the store's DVR security system had been removed, and bullet casings had been left on the floor.

         Rivas told police that at about 4:00 a.m., he had seen a man, or men, placing boxes inside Chevo's gold Honda parked in the parking lot. When the man saw Rivas, he approached him, pointed a handgun at him, and asked him a question about Chevo. Rivas responded by "play[ing] dumb" and saying "I don't know what you're talking about." According to Rivas, he "stayed low" and waited for them to leave, and then he went to a nearby store and called 911.

         The police obtained the license plate number to the Honda from Chevo's co-workers, and the vehicle was later found abandoned off Jacksboro Highway. In the meantime, due to the large amount of evidence at the crime scene, the police continued to investigate and collect evidence from the premises for three days.

         C. After the Murder

         In April 2016, G.B.'s mother was released from an eleven-month court-ordered residential treatment program, and G.B. received a referral from the Fort Worth Police Department for possession of marijuana of less than two ounces in a drug free zone-possession of drugs at school-for which he received a supervisory caution. G.B.'s latent fingerprints were also found at the scene of an April 28, 2016 burglary.[5]

         In the two months that followed, events escalated for G.B. In May, he was expelled from school after being found with a knife and syrup[6] in his possession at school. He had been staying in a hotel with a young girl who had been reported as a runaway. A directive to apprehend him was issued on May 25 for his violation of the conditions of his release, and he was referred in custody by the Fort Worth Police Department for two burglary-of-a-habitation offenses and failure to identify. During that investigation, the police discovered that G.B. had lied about his age and that there was a pending warrant for his arrest.

         In June, a first amended delinquency petition was filed against G.B. for possession of marijuana and burglary of a habitation, and he was placed on an electronic ankle monitor. Then, based on information from an Irving Police Department narcotics confidential informant, Detective Anderson located the murder weapon, which led him to Segura-the gun's owner-and Segura's friends, one of whom, Ruben Gonzalez, identified G.B. as one of the parties responsible for Chevo's death.

         According to Gonzalez, the day before Chevo was killed, Segura told Gonzalez that he and G.B. were going to go to Chevo's shop to get some cocaine. Gonzalez said that prior to the shooting, Segura had already told him that he planned to rob Chevo, and then afterwards Segura admitted that they had killed him. Segura also admitted that they had removed and disposed of the security camera system and that they also stole stereos, guns, and approximately $5, 000 before they "clean[ed] everything up." Using G.B.'s name and the Twitter handle that had been provided to him by Gonzalez, Detective Anderson located a photo of G.B. holding an AK-47. Gonzalez identified G.B. from the photo.

         Detective Anderson interviewed Segura, who admitted that he had shot Chevo and that the murder weapon was his. Segura told the detective that after he shot Chevo, he let G.B. inside. He described G.B. as "happy" as he stepped on Chevo's body, approached a grandfather clock, and began gathering money that was hidden inside.[7] According to Segura, G.B. and Marines made at least three trips into and out of the building to take money, cocaine, watches, cologne, car stereos, car batteries, tires, a DVR system, and guns, and at least one of those trips was for the purpose of removing fingerprints from glass and other surfaces they had touched while there. In the process, they loaded Chevo's Honda with items taken from the store, and when the looting spree was complete, G.B. and Marines drove it from the scene. As for the cash, Segura told the detective that he and G.B. used $1, 050 as a deposit on a new apartment and then invested $2, 700 on a pound of marijuana. Most of the stolen goods were eventually sold "on the street, "[8] and the vehicle was abandoned at a gas well site. The DVR security camera system was destroyed.

         On the same day that he interviewed Segura, Detective Anderson also interviewed Alex Ramirez, who had destroyed the store's DVR for the three men. While Segura had denied having planned to rob Chevo, Ramirez told the detective that prior to the murder he had heard Segura and G.B. talking about robbing Chevo.

         Detective Anderson's next step was to contact G.B.'s family. G.B.'s brother D.B. told the detective that G.B. told him that he had gone to the tire shop to look for a job the day Chevo's body was found and that when he discovered Chevo's body, he went "through his pockets and [had] taken some stuff." D.B. said that three months after the murder, G.B. "told him he was waiting outside in the all[e]y when he heard . . . the gunshots and went inside to find [Segura] and" Chevo. D.B. told Detective Anderson that G.B. told him that Segura killed Chevo and that G.B. had acquired approximately $800 the day Chevo was killed. D.B. also told him that G.B. had worked for Chevo off and on and that G.B. had initially stolen a phone from the premises but had quickly rid himself of it because he did not want the police to be able to use it to track him down.

         Marines, the other participant in the robbery, told Detective Anderson that prior to the shooting, Segura had talked about how he needed money to "pay off a dope loan." According to Marines, that evening he and G.B. waited in the alley until they heard a loud pop. After three to five minutes, they heard the sound, and G.B. "got excited and ran to the shop." But Marines stayed in the alley until Segura came out and handed him two bags of cocaine. He continued to stay outside until Segura returned again, at which time, according to Marines, Segura told him that things had gone "bad" and that he had shot Chevo. Marines said that before they went to the shop that night, Segura said that Chevo was going to either give them the cocaine "for a decent amount or [that he was] just going to take it from him."

         During the time that Detective Anderson conducted these interviews, G.B. cut off his electronic ankle monitor and ran away from home. He was gone for a month before he was detained on August 4, 2016, on a directive to apprehend issued after he removed the monitor. G.B. said that he cut off the monitor so that he could attend a concert in Dallas. After G.B. was taken into custody in August for burglary, Detective Anderson added the instant capital murder charge.

         D. Procedural Background

         On September 13, 2016, the State filed a petition requesting that the juvenile court waive its jurisdiction and transfer G.B. to the district court to be tried as an adult for violating penal code section 19.03(a)(2).[9] See Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2016) (defining capital murder as intentionally committing the murder in the course of, among other offenses, committing or attempting to commit a burglary or robbery); Tex. Fam. Code Ann. § 54.02 (West 2014). The juvenile court issued an order for a diagnostic study, social evaluation, and full investigation of G.B., his circumstances, and the circumstances surrounding the alleged offense. See Tex. Fam. Code Ann. § 54.02(d).

         As of September 2016, G.B. was assessed with a high risk of re-offending criminally. During the assessment process, G.B. had reported using marijuana, alcohol, and Xanax, primarily at parties on the weekend, and he had admitted to past behavioral problems in school related to skipping, being disrespectful, and being disruptive. The substance abuse assessment on G.B. was completed in October 2016, and it recommended intensive residential treatment. In December 2016, G.B. was released to his aunt and grandmother on an electronic ankle monitor conditioned at least in part on no access to social media. In the meantime, Detective Anderson had obtained a search warrant for G.B.'s DNA. At the time the warrant was executed, G.B. volunteered to the detective that his attorney was trying to get the charge dropped to aggravated robbery because G.B. did not enter the building until after the shot was fired.

         At the February 2017 certification hearing, Shahan, who worked in the placement unit of the Tarrant County Juvenile Probation Department, testified that he supervised adolescents who had been court-ordered into residential treatment. He conducted a placement search for G.B. but was unable to locate a secure private facility that was willing to accept him. Shahan was able to locate an unsecure placement, but the only facility willing to accept him-Glen Mills school in Concordville, Pennsylvania-was unable to meet G.B.'s need for psychotherapy.

         After the State rested, G.B. presented evidence from Michael Flores, a licensed professional counselor at Brighter Possibilities Family Counseling, which offered in-home family counseling if there was a mental health component but did not require a mental health component for office treatment. He testified that Brighter Possibilities could offer outpatient drug treatment for those trying to stop drug use, but if addiction was an issue, it would make a referral to a treatment facility.

         G.B. also presented the testimony of Frank Minikon, the court intake supervisor for Juvenile Services. Minikon had stepped in for G.B.'s regular probation officer, Maria Rojas, who was on leave. Minikon testified that G.B. was living at home with his aunt and was on an electronic ankle monitor. He was enrolled at JJAEP, an alternative school for juvenile justice, and attended counseling every Tuesday. Minikon stated that there had been no reported issues while G.B. was out on the monitor.

         The evaluation reflected an opinion that G.B.'s risk for dangerousness was low because there was insufficient evidence that he had actively engaged in physical violence toward others. His sophistication rating was "in the high range, " but according to the report, this was "attributable to his sophistication rather than his emotional maturity." His amenability to treatment was low because his established history and his interview both supported an inference that he did not perceive himself to have any mental health or drug abuse problems and he was thereby unmotivated to engage in services available to treat them. The licensed psychologist who performed the diagnosis stated, "It is unclear how ...

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