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In re D.M.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 18, 2018

IN THE MATTER OF D.M., A CHILD

         On appeal from the 449th District Court of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Benavides

          MEMORANDUM OPINION

          GINA M. BENAVIDES, JUSTICE .

         By three issues, appellant D.M.[1], 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 affirm.

         I. Background

         A. Procedural History

         D.M. 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).

         A 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 court.

         B. Discretionary Transfer Hearing

         During 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.

         F.R. 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, hitting M.A.[2]

         Further 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 bullets[3]seen 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.

         D.M. 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 shooter.

         Probation 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[4] 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.

         Arispe 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.

         Arispe 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.

         Arispe 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.

         The 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. [5] See Tex. Fam. Code Ann. § 56.01(c)(1)(A) (West, Westlaw through 2017 1st C.S.).

         II. Standard of Review and Applicable Law For Discretionary Transfer

         In 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.).

         In 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)).

         Family 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).

         Regarding 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."[6] 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).

         III. Sufficiency of the Evidence

         By his second issue, which we address first, D.M. argues the evidence was insufficient to support the trial ...


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