Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 449th District Court of Hidalgo County,
Chief Justice Valdez and Justices Contreras and Benavides
M. BENAVIDES, JUSTICE .
three issues, appellant D.M., a juvenile, challenges the
juvenile trial court's certification of his case being
transferred to the adult criminal justice system. D.M.
asserts that: (1) the trial court erred by considering
documents that were not in evidence, (2) the evidence was
insufficient to support the determination to certify D.M. as
an adult, and (3) the trial court committed error by
excluding relevant evidence during his competency trial. We
was charged with the capital murder of M.A. and the
aggravated assault of F.R. On March 29, 2016, the State filed
its Petition for Discretionary Transfer to Criminal Court,
asking the trial court to waive its jurisdiction and transfer
D.M.'s case to the adult criminal courts. See
Tex. Fam. Code Ann. § 54.02 (West, Westlaw through 2017
1st C.S.). D.M. subsequently filed a motion to determine
whether he was unfit to proceed, as a result of mental
illness or mental retardation. The trial court ordered a
social study to be conducted by the juvenile probation
department and appointed Dr. David Moron and Dr. Gregorio
Pina to conduct evaluations of D.M. under chapter 55 of the
Texas Family Code. See Tex. Fam. Code Ann. ch. 55
(West, Westlaw through 2017 1st C.S.) (proceedings concerning
children with mental illness or intellectual disabilities).
two-day jury trial was held to determine if D.M. was
competent to proceed with the charges filed against him, with
the jury finding D.M. fit to proceed. Approximately three
months later, the trial court conducted a hearing regarding
the State's motion to transfer D.M. to an adult criminal
Discretionary Transfer Hearing
the transfer hearing, the State called Hidalgo County
Sheriff's Office Investigator Javier Vargas as its first
witness. Investigator Vargas testified that he was the lead
investigator on the capital murder case. On February 15,
2016, Hidalgo County Sheriff's deputies were called out
to a homicide in Mission. Upon arriving, the deputies
discovered the body of M.A. and interviewed F.R., the
complainant in the underlying aggravated assault charge.
told deputies that he sold small amounts of hydroponic
marijuana out of his house, and M.A. had arrived with D.M.
and others to purchase drugs from him. After the drug
transaction occurred, D.M. and M.A. returned to the waiting
vehicle they arrived in, but F.R. stated that suddenly M.A.
jumped out from behind the driver's side seat of the
vehicle, came running towards F.R., and told F.R. in Spanish
that "they had a gun." F.R. then said the front
passenger, whom he believed to be D.M., started shooting,
investigation by the sheriff's office found a video sent
to M.A. on Facebook Messenger which depicts D.M. holding a
gun and wearing an identical shirt to the one described to
deputies by F.R. Investigator Vargas testified that the gun
and bulletsseen in the video appeared to match the
bullets found at the crime scene. Based on the information
gathered, the sheriff's office deputies arrested D.M. for
the death of M.A. and aggravated assault of F.R.
gave deputies a statement placing himself at the crime scene
and implicated a co-defendant, J.M. Investigator Vargas
testified that based on this information, police executed a
search warrant at J.M.'s girlfriend's home, where
deputies located ammunition that matched the ammunition seen
in D.M.'s video and found at the crime scene, as well as
other U.S. Border Patrol-issued items. After arresting J.M.
and charging him with the murder of M.A. and the aggravated
assault of F.R., J.M. gave a statement corroborating many of
the details given by F.R. and identifying D.M. as the
officer Marissa Arispe-Marmolejo (Arispe) testified that she
supervised D.M. Arispe stated she was first assigned to D.M.
when he was placed on supervision following a prior state
jail felony charge of unauthorized use of a motor vehicle.
See Tex. Penal Code Ann. § 31.07 (West, Westlaw
through 2017 1st C.S.). Arispe also said she was the
probation officer who prepared the social study and
discretionary transfer hearing report for the trial court. Arispe
told the trial court that she had not had contact with D.M.
or his family for supervision purposes or for the completion
of the social study because D.M.'s counsel had requested
that the probation department not have contact with D.M.
explained that she gathered information for her social study
based on interviews with D.M.'s teachers at the juvenile
detention center, her observations of D.M. from the courtroom
or accompanying him to doctor's appointments, and
included the doctor's recommendations. Arispe stated that
her report included recommendations from Drs. Xavier
Martinez, Gerardo Mireles, David Moron, Gregorio Pina, and
Ramiro Ramirez. She agreed with D.M. that she did not review
any records from outside of the detention facility.
explained that D.M. was doing well in his classes at the
detention facility, to the point where at least one of his
teachers did not believe he belonged in special education
classes. Arispe noted that it appeared that D.M. liked to
selectively forget things when convenient and also appeared
to understand the courtroom proceedings.
testified that the juvenile probation department recommended
for D.M. to be transferred to the adult criminal system based
on the type of offense committed.
trial court waived its jurisdiction and explained the factors
that contributed to its decision. The trial court signed
D.M's certification on May 23, 2017. This interlocutory
appeal followed.  See Tex. Fam. Code Ann. §
56.01(c)(1)(A) (West, Westlaw through 2017 1st C.S.).
Standard of Review and Applicable Law For
order to waive jurisdiction and transfer D.M. to be tried as
an adult, the juvenile court had to find that: (1) D.M. was
alleged to have committed a felony; (2) D.M. was fourteen
years old or older at the time he committed the alleged
offense (a capital felony for which no adjudication hearing
has been conducted); (3) after a full investigation and a
hearing, there was probable cause to believe that D.M.
committed the alleged offense; and (4) that the welfare of
the community required criminal proceedings because of the
alleged offense's seriousness or D.M.'s background.
See Tex. Fam. Code Ann. § 54.02(a)(1)-(3);
Matter of G.B., 524 S.W.3d 906, 914 (Tex. App.-Fort
Worth 2017, no pet.).
making the determination required in subsection (a), the
juvenile court had to consider, among other matters: (1)
whether the alleged offense was against person or property,
with greater weight in favor of transfer given to offenses
against persons; (2) the sophistication and maturity of D.M.;
(3) the record and previous history of D.M.; and (4) the
prospect of adequate protection of the public and the
likelihood of the rehabilitation of D.M. by use of the
procedures, services, and facilities currently available to
the juvenile court. See Tex. Fam. Code Ann. §
54.02(f). These aforementioned factors are nonexclusive and
serve to facilitate the juvenile court's balancing of the
potential danger to the public posed by that particular
juvenile offense with the juvenile's amenability to
treatment. Moon v. State, 451 S.W.3d 28, 38 (Tex.
Crim. App. 2014) (citing Hidalgo v. State, 983
S.W.2d 746, 754 (Tex. Crim. App. 1999)).
Code section 54.02(h) requires that if the
juvenile court waives jurisdiction, it shall state
specifically in the order its reasons for waiver and certify
its action, including the written order and findings of the
court, and shall transfer the person to the appropriate court
for criminal proceedings and cause the results of the
diagnostic study of the person ordered under Subsection (d),
including psychological information, to be transferred to the
appropriate criminal prosecutor. On transfer of the person
for criminal proceedings, the person shall be dealt with as
an adult and in accordance with the Code of Criminal
Procedure. . . .
Tex. Fam. Code Ann. § 54.02(h).
our review of the trial court's order, the court of
criminal appeals has instructed the following:
[I]n evaluating a juvenile court's decision to waive its
jurisdiction, an appellate court should first review the
juvenile court's specific findings of fact regarding the
Section 54.02(f) factors under "traditional sufficiency
of the evidence review." But it should then review the
juvenile court's ultimate waiver decision under an abuse
of discretion standard. That is to say, in deciding whether
the juvenile court erred to conclude that the seriousness of
the offense alleged and/or the background of the juvenile
called for criminal proceedings for the welfare of the
community, the appellate court should simply ask, in light of
its 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. In other words, was its
transfer decision essentially arbitrary, given the evidence
upon which it was based, or did it represent a reasonably
principled application of the legislative criteria? And, of
course, reviewing courts should bear in mind that not every
Section 54.02(f) factor must weigh in favor of transfer to
justify the juvenile court's discretionary decision to
waive its jurisdiction.
Matter of G.B., 524 S.W.3d at 914-15 (quoting
Moon, 451 S.W.3d at 47). Additionally,
a reviewing court should measure sufficiency of the evidence
to support the juvenile court's stated reasons for
transfer by considering the sufficiency of the evidence to
support the facts as they are expressly found by the juvenile
court in its certified order. The appellate court should
not be made to rummage through the record for facts
that the juvenile court might have found, given the
evidence developed at the transfer hearing, but did not
include in its written order. We therefore hold that, in
conducting a review of the sufficiency of the evidence to
establish the facts relevant to the Section 54.02(f) factors
and any other relevant historical facts, which are meant to
inform the juvenile court's discretion whether the
seriousness of the offense alleged or the background of the
juvenile warrants transfer for the welfare of the community,
the appellate court must limit its sufficiency review to the
facts that the juvenile court expressly relied upon, as
required to be explicitly set out in the juvenile transfer
order under Section 54.02(f).
Id. at 915 (quoting Moon, 451 S.W.3d at
49-50) (emphasis in original).
Sufficiency of the Evidence
second issue, which we address first, D.M. argues the
evidence was insufficient to support the trial ...