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In re W.D.H.

Court of Appeals of Texas, Fourteenth District

July 20, 2017

IN THE MATTER OF W.D.H.

         On Appeal from the County Court at Law No. 2 & Probate Court Brazoria County, Texas Trial Court Cause No. JV21372

          Panel consists of Justices Boyce, Donovan, and Jewell.

          MEMORANDUM OPINION

          William J. Boyce, Justice

         Appellant W.D.H. is a juvenile charged with aggravated robbery, robbery, and unauthorized use of a motor vehicle. See Tex. Penal Code Ann. §§ 29.02, 29.03, 31.07 (West 2011, 2016). Appellant was sixteen years old at the time of the alleged offenses. Appellant challenges the order granting the State's petition for the juvenile court to waive jurisdiction and transfer the case to criminal district court. See Tex. Fam. Code Ann. §§ 54.02, 56.01 (West Supp. 2017). In a single issue, appellant contends the juvenile court's findings of fact in its transfer order are legally and factually insufficient to support each of the juvenile court's reasons to waive jurisdiction; and in light of the evidence and testimony presented at the transfer hearing, the juvenile court abused its discretion in waiving jurisdiction and acted without reference to guiding rules or principles and failed to represent a reasonably principled application of the legislative criteria necessary to transfer this case to adult court. Because we find the evidence sufficient to support the trial court's order, and we find no abuse of discretion in the juvenile court's decision to waive jurisdiction and transfer appellant to district court, we affirm.

         I. Factual and Procedural Background

         The State instituted this case in December 2016 by filing a petition for discretionary transfer to adult criminal court seeking to certify appellant to stand trial as an adult. The State sought certification as an adult due to the serious and severe nature of the alleged offenses, the prospects of adequate protection of the public and the doubtful likelihood of reasonable rehabilitation of appellant by the use of the procedures, services, and facilities currently available to the juvenile court.

         The juvenile court conducted a hearing on the State's petition. The State presented testimony from Michael Fuller, a psychiatrist employed by the University of Texas Medical Branch at Galveston; Eric Morton and Tyson Harvey, Pearland Police detectives; and Patrick Okafor, a juvenile probation officer with the Brazoria County Juvenile Justice Department. Appellant presented testimony from his mother. The State admitted six exhibits into evidence including Dr. Fuller's psychiatric examination report, Detective Morton's investigation report, two Houston Police Department investigation reports, a witness statement from the Pearland Police Department, and a predisposition report from the Brazoria County Juvenile Justice Department.

         At the conclusion of the hearing, the juvenile court orally announced the following findings:

• Probable cause exists on the four allegations contained in the petition for discretionary transfer;
• Appellant was over the age of sixteen at the time the offenses were committed;
• The juvenile system does not provide appellant a chance for rehabilitation;
• The offenses are against persons and property;
• Neither the juvenile nor the public can be adequately protected if he remains in the juvenile justice system; and
• The maturity of appellant is appropriate for the transfer and the evidence testified to by Dr. Fuller would support that transfer.

         The juvenile court later signed an order specifically stating the reasons for waiver. See Tex. Fam. Code Ann. § 54.02(h). This appeal timely followed. Id. § 56.01(c)(1)(A).

         A. The Investigation

         Eric Morton, a Pearland Police Department detective, was assigned to investigate the aggravated robbery of a female complainant that occurred on September 29, 2016. Morton testified that Codi Shackelford was walking home from her job as a waitress at 1:30 a.m. Shackelford was walking through a grocery store parking lot when she saw a car pull up next to her. Three men got out of the car, displayed a weapon, and took her personal belongings. Shackelford described the car as a maroon passenger car. The assailants took Shackelford's work apron, food she was bringing home from work, a jacket, a credit card, approximately $100.00 in cash, and a BLU smart phone. Morton testified that BLU is the brand name of the phone.

         Shackelford described what the three men were wearing. She said the driver was wearing a black long-sleeve shirt carrying a black, thin handgun. She reported that the driver "racked the slide" of the gun, but Morton's report reflects no bullet ejected. The other two men were wearing jackets. After the men took Shackelford's belongings, she walked home and called the police. Shackelford did not know any of the assailants.

         During his investigation Morton obtained video from a surveillance camera at the grocery store. In the video Morton saw the maroon passenger car, but was unable to determine the make and model. Morton also saw Shackelford walking in the video, but was unable to see the alleged robbery.

         Morton's investigation led him to two reports of robberies from the Houston Police Department. The first report was of a stolen car, which was stolen September 24, 2016. Morton linked that stolen car to the robbery of Shackelford in Pearland through another robbery in Houston. The Houston robbery took place the day after the Pearland robbery on September 30, 2016. In the Houston robbery, the victim was struck in the head with an unknown weapon and her belongings were stolen from her. The Houston victim remembered two digits of the assailants' license plate number. Houston police officers found the car, and were involved in a pursuit. After stopping the car, Houston police found four suspects and a BLU brand smart phone. The BLU phone matched the description of Shackelford's phone. Houston police arrested the four men in the car, including appellant.

         A photographic lineup was prepared for Shackelford to view. Detective Tyson Harvey submitted the lineup to Shackelford. The Pearland police report, the two Houston police reports, and the photo array were admitted into evidence without objection. When the photo array was shown to Shackelford, she identified appellant as one of her assailants. She did not know whether appellant was the driver of the car or one of its passengers, but reported that appellant was the one with the handgun.

         Morton recovered the phone that was found in the car in Houston. Shackelford described her phone as having a crack in the screen, which matched the phone found in the car. Morton has been unable to obtain the phone since the arrest because "[i]t's lost somewhere in Houston property[.]" The car found in Houston was a maroon Ford Focus, which matched Shackelford's description. Morton interviewed the owner of the stolen car who told him it was valued at between $7, 000.00 and $8, 000.00. A BB gun was found in the stolen car.

         The Houston complainant also identified appellant, but stated that he stayed in the car while two other men robbed her.

         Detective Tyson Harvey of the Pearland Police Department testified that Morton contacted him to administer the photo lineup. Harvey was not told the identities of any of the photos in the array. Shackelford identified the photo in position number three, which was appellant. Harvey asked Shackelford to describe how certain she was in her identification. Shackelford responded that she was "one hundred percent sure" that the person she identified was the person with the gun. No video recording was made of Shackelford's identification because Harvey took the photo array to Shackelford's apartment rather than administer it at the police station. Another detective was also present at the time of the identification.

         B. Expert Testimony

         The State called psychiatrist Dr. Michael Fuller as its expert witness. Dr. Fuller frequently performs evaluations on juveniles whom the State is seeking to transfer to adult court. Dr. Fuller conducted a psychiatric examination of appellant prior to the transfer hearing, and his report was admitted into evidence. Dr. Fuller's findings were based on obtaining a psychiatric and psychological social history, a mental status examination, as well as probing various areas of psychological function such as depression and psychosis. Dr. Fuller found that appellant was cooperative and participated fully with the examination. He learned that appellant was in the ninth grade, had not been previously subjected to any forms of abuse or neglect, had repeated eighth grade, did not have a history of significant or apparent cognitive difficulties in school, and enjoys reading and playing basketball.

         Appellant denied any previous history of psychiatric or psychological issues that were diagnosed and/or treated. Appellant told Dr. Fuller that he had tried marijuana in the past, but denied tobacco, alcohol, or other drug use. Appellant's speech was normal and reflected an individual of at least average intelligence. Appellant's mood and affect were good. Appellant's cognitive functioning was in the average to above average range. He was able to perform all aspects of memory and processing. Dr. Fuller found that appellant was a reasonably well-informed young man who was aware of his circumstances in a thoughtful way, aware of the consequences he was facing, and appeared to be able to relate effectively with his attorney if he chose to do so. Dr. Fuller concluded that appellant is a reasonably thoughtful, intelligent, and mature young man and that he saw no red flags that would suggest that it would be inappropriate for him to be considered for transfer.

         C. Additional Witnesses

         Patrick Okafor, a juvenile probation officer with the Brazoria County Juvenile Justice Department, testified that he was familiar with appellant. Okafor, as an intake officer, works with newly referred juveniles, monitors them while they are on conditions of release, or, if they are detained, checks on their behavior while they are in detention. Okafor did not have any direct involvement in the investigation of the alleged offenses.

         In preparing a social history report known as a predisposition report, Okafor spoke with appellant about his family history and hobbies, interviewed his mother, made contacts with school officials, and gathered school records. Okafor described appellant as straightforward in his interview with the disposition of a normal teenager. Okafor learned that appellant went to Yates High School and was close with his mother growing up. Appellant's school records reflected ten absences for full or partial days for a period between August 22 and October 3. Appellant was failing "quite a few of his classes." Okafor's predisposition report was admitted into evidence without objection.

         During the preparation of the predisposition report appellant self-reported marijuana usage. To Okafor's knowledge appellant was not tested when he was brought into detention. Appellant does not have much contact with his father because his father is incarcerated. Appellant lives with his mother, stepfather, and siblings, and has a close relationship with his mother. Okafor was unable to conduct an evaluation of appellant's home environment because his attempts to contact family members other than appellant's mother were unsuccessful. As to emotional responses, appellant reported getting angry or upset when he learned one of his friends had died. Okafor reviewed Dr. Fuller's report and agreed with Dr. Fuller that appellant is a reasonably intelligent and mature young man.

         While in detention, appellant has been disruptive. During four months of detention, he had 26 disciplinary referrals for various offenses such as cursing the staff and refusing to follow instructions. One of the referrals noted that he had threatened the staff. Specifically, appellant was reported to have said, "[I]f this was Harris County, I would 'F' you up[.]" Two altercations with other juveniles were resolved before anyone was hurt. Appellant's behavior has been consistent throughout his detention, but escalating, becoming more defiant after a while. Most of appellant's phone calls are to his mother. Appellant expressed to Okafor that he wants to go home. Appellant is receiving education while in detention, but some of his discipline referrals have been at school, cursing teachers. Appellant's grades have improved; he was failing two classes at the time of the hearing.

         With regard to options for appellant Okafor noted that appellant would turn seventeen March 19, 2017. At the time of the alleged offense appellant was sixteen. Okafor testified that due to the severity of the alleged offenses and appellant's age, the juvenile department is recommending certification to be tried as an adult. Okafor testified that the juvenile department is not equipped to deal with juveniles who commit numerous violent felonies at an older age. A determinant sentence probation would not be appropriate in this case due to the severity of the alleged offenses, appellant's age, and appellant's behavior while in detention.

         The options available for appellant in juvenile detention allow for residential treatment until appellant turns eighteen. The treatment is a nine-month treatment plan with follow-up treatment. Okafor testified that with appellant's age there would not be sufficient time to treat him before he turned eighteen. Although appellant could be sentenced to confinement in the Texas Juvenile Justice Department until he turned nineteen, the department does not recommend that option due to the severity of the alleged offenses.

         Okafor was not aware of any prior criminal history of appellant. He was also not aware of any good behavior while appellant was in detention. The facility will report good ...


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