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In re J. D. H.

Court of Appeals of Texas, First District

May 8, 2018

IN THE MATTER OF J. D. H., Appellant

          On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2017-02248J & 2017-01833J

          Panel consists of Justices Jennings, Keyes, and Higley.


          Evelyn V. Keyes Justice

         This is an interlocutory appeal[1] from a juvenile court order waiving jurisdiction over appellant, J.D.H., regarding the charges against him for aggravated robbery and murder, and transferring his case to criminal district court. In two issues, J.D.H. argues that the juvenile court abused its discretion by waiving jurisdiction and transferring the case because (1) the evidence was legally and factually insufficient to support the juvenile court's finding that there was probable cause to believe that J.D.H. had committed the offenses as alleged and (2) the evidence was legally and factually insufficient to support the juvenile court's findings that the welfare of the community required criminal proceedings.

         We affirm.


         J.D.H. was indicted for the felony offenses of aggravated robbery and murder.[2] The State filed a motion asking the juvenile court to waive its jurisdiction over J.D.H., certify him to be tried as an adult, and transfer his cases to the criminal district court. The juvenile court ordered that a certification evaluation be conducted, and an investigation was completed.

         On October 17, 2017, the juvenile court conducted a certification hearing on the State's motion to waive jurisdiction and transfer the cases to the criminal district court. The parties entered into a stipulation regarding J.D.H.'s date of birth, establishing on the record that he was born on May 17, 2002, making him fifteen at the time of the hearing. The juvenile court also admitted into evidence proof of service for J.D.H. and his parents and copies of the reports and evaluations completed on J.D.H. in preparation for the certification hearing, including the Court Report Information Summary, a Harris County Juvenile Probation Department Court Report, the psychiatric report of Dr. Linda Wittig, and the Juvenile Forensic Unit's report, created by psychologist Alexandra Maestre and approved by supervising psychologist Uche Chibueze, following the certification evaluation.

         The record demonstrated that J.D.H. had seven previous referrals to the juvenile justice system: mischief resulting in property damage in February 2015; burglary of a motor vehicle in May 2015; unauthorized use of a motor vehicle and evading arrest/detention in April 2016; and three different violations of the terms of his probation from the 2016 offenses. He had been detained in several juvenile facilities but continued to engage in delinquent and criminal behavior. J.D.H. was detained on the underlying charges beginning in April 2017.

         The reports entered into evidence at the certification hearing contained information regarding the circumstances of the charged offenses of murder and aggravated robbery and the subsequent investigations; information regarding J.D.H.'s current detention and disciplinary problems during his detention; his education history, indicating poor attendance and grades; and the history of J.D.H.'s relationships, asserting that J.D.H. "is believed to be a member of the JACC BOYS Clique" and that, although he denied being an actual member, he had admitted affiliation with other members of that gang. The reports further indicated that J.D.H. lived with his mother, and had no contact with his father. He had a history of marijuana use, including an incident in which he was found unconscious after smoking synthetic marijuana and was treated at the hospital.

         The Juvenile Probation Department Court Report indicated that J.D.H. had been detained on other charges, including unauthorized use of a motor vehicle, and then released and placed on probation. He complied with the random drug screenings and assessment for services, but he failed to attend the Gang Alternative Prevention Program and had problems with truancy and curfew violations. The report noted that his "overall adjustment to probation [for his 2016 offenses] has been unsatisfactory, " stating, "He has violated his Court Ordered curfew on numerous occasions, has accumulated excessive unexcused school absences, and is currently at the Juvenile Justice Center for an alleged offense of Murder." He had been given an ankle monitor at one point, but it was removed because he had numerous curfew violations.

         The record contained a risk assessment indicating that J.D.H.'s overall risk to reoffend was high based on both his criminal and his social history.

         A psychiatric evaluation was conducted by Dr. Linda Wittig, and her report was included in the record. She noted that J.D.H. "had a history of suspensions [from school] due to physical alterations" and disrespectful behavior, and he had a history of truancy. Dr. Wittig's report noted J.D.H.'s prior adjudications for burglary of a motor vehicle and criminal mischief, noting that he was placed on "the 30-Day Impact Unit" but "did not do well" in that program and "was transferred to the Phoenix Unit Program at [the Burnett-Bayland Reception Center, a juvenile detention center]" where he remained from August 11, 2015, until November 4, 2015. After his release, J.D.H. was placed on probation and initially did well, but he ultimately had difficulties, including testing positive for marijuana use and being detained from February 9, 2016, until March 28, 2016, on charges "involv[ing] auto-theft, evading arrest, and trespassing with a vehicle."

         Dr. Wittig determined that J.D.H.'s intelligence was "perhaps in the borderline to low average range of intellectual functioning." Dr. Wittig discussed with J.D.H. the nature of the charges against him and the consequences of conviction, courtroom roles of the judge, jury, and attorneys, and his ability to assist in his own defense. She concluded that J.D.H.'s "past testing suggests that he has some limitations in intellectual functioning and achievement" and that he had "a history of poor impulse control, poor frustration tolerance, distractibility, and hyperactivity." Dr. Wittig "did not see [J.D.H.] as imminently suicidal or homicidal, although he could be at chronic risk for self-destructive or aggressive behaviors in light of his history." She stated in her report,

Despite the presence of his emotional symptoms and limitations in intellectual functioning, [J.D.H.] showed an understanding of his charges and possible consequences of being found responsible for these. With prompting he showed an understanding of the court proceedings which he faces as well as the roles of various individuals and the jury in the courtroom. Based on his way of relating in the interview today, [J.D.H.] should be able to assist his attorney in his defense, if given concrete directives and advice.

         Dr. Wittig determined that J.D.H. "can be deemed competent and fit to proceed" in criminal district court. She diagnosed him with ADHD and "Unspecified Disruptive, Impulse Control, and Conduct Disorder."

         Dr. Wittig also made the following recommendations:

If [J.D.H.] is found responsible for the incidents resulting in his referral to the Juvenile Probation Department, he may benefit from a structured residential treatment setting where he can learn to take responsibility for his actions and develop empathy for victims. He also would benefit from opportunities to get back on track with regard to his education. He may benefit once again from medication such as those he was given [during an earlier detention]. In addition, he would benefit from substance abuse interventions in whatever setting he is placed.
[J.D.H.] is still relatively young and would benefit from anger management, social skills, and family interventions ultimately. It appears from the records that his family was never able to follow through with getting him to appointments. He may also ultimately benefit from a mentor who can help him persist in school and become involved in prosocial activities.

         J.D.H. was also tested for overall intellectual ability and cognitive strengths and weakness by psychologist Alexandra Maestre, who was under the supervision of psychologist Uche Chibueze. J.D.H.'s IQ was in the "very low" range, and his verbal and mathematical knowledge was determined to be equivalent to that of an average third or fourth grader. He also scored in the "borderline" range on a test of his adaptive functioning, based on the "Street Survival Skills Questionaire." J.D.H. was also assessed for his level of criminal sophistication and dangerousness, and Maestre determined, excluding the underlying charged offenses, that J.D.H.'s "rated Violent and Aggressive Tendencies, Planned and Extensive Criminality, and Psychopathic Features fell in the High range." Based on all of the testing, Maestre concluded, "In light of the results from [the various cognitive and behavioral tests], and the narrative assessment of [J.D.H.'s] level of dangerousness/sophistication, it is felt that [J.D.H.] exhibits a below average level of intellectual-based sophistication, and an average level of criminal sophistication and dangerousness in comparison to most offenders his age. . . ."

         Maestre further determined that J.D.H. exhibited "a below average level of maturity in comparison to most individuals his age." Maestre considered J.D.H.'s past detentions and rehabilitation efforts in addition to the extensive testing and determined that although J.D.H. "demonstrated compliance [with rehabilitation efforts] in some areas, he continued to exhibit some behavioral disturbances while in placement, " citing "persistent refusal to follow program rules, " "aggressive physical contact toward another individual, " and "poor compliance while on probation." Maestre also noted numerous infractions during J.D.H.'s current period of detention on the underlying charges, and ultimately determined that J.D.H. "exhibits a Moderately Low level of treatment amenability in comparison to most individuals his age" and that "without treatment, without legal consequences of any kind, and without time to mature, it would appear that [J.D.H.] is at Moderately High Risk for some type of reoffending[.]"

         Maestre recommended, "Due to the seriousness of the nature of his alleged offense, if adjudicated, [J.D.H.] will likely benefit from a highly structured environment that is instrumental in helping him regulate his involvement in negative activities." Maestre determined that J.D.H. would benefit from counseling, treatment of his ADHD and behavioral disruptions, substance abuse treatment, and gang-involvement assessment and possible gang prevention program.

         Detective R. Moss testified at the hearing. He provided an account of the offenses in question and the subsequent investigation that identified J.D.H. as a participant in both the aggravated robbery and murder. Through his testimony and other written accounts provided in the hearing record, the State indicated that on the evening of February 27, 2017, Andrea Ojeda, her husband, and their children were filling water jugs at a water station in a parking lot. Ojeda was sitting in the driver's seat of her green Jeep Commander while the jugs were filling when a group of males approached in another vehicle. One of the males displayed a pistol and demanded that Ojeda get out of the vehicle. Ojeda and her husband were able to remove their children from the Jeep, and then another of the males got into the driver's seat of her Jeep and drove off.

         Later that same evening, Edward Scott was driving his SUV with his wife, Jessica Mills, and their two young children in his vehicle. A green Jeep Commander backed into Scott's SUV and then fled the scene of the accident. Scott followed the Jeep, which eventually stopped in a parking lot, and Scott pulled next to the Jeep and informed the driver that he had called the police. Scott told police that the driver of the Jeep started to yell, making Mills feel unsafe and leading Scott to drive away. Scott heard gunshots and learned that Mills had been struck by a bullet. Scott told police that he was confident that the driver had fired the shots at his car. Scott was also able to take a picture of the Jeep's license plate, and police determined that it was the same vehicle stolen approximately an hour-and-a-half earlier from Ojeda while she filled her water jugs just a few miles away from the scene of the shooting.

         Mills subsequently died from the gunshot wound she sustained following the crash with the stolen Jeep. The State included a copy of her autopsy report in the record, which stated that she died from the gunshot and her death was ruled a homicide. The State also provided several photographs of Mills with her husband and children.

          Following an investigation, Detective Moss learned that a police task force was conducting surveillance regarding serial carjackings similar to the one perpetrated on Ojeda. Police eventually arrested some people believed to be involved in either the aggravated robbery of Ojeda or the shooting of Mills. One of the males involved, K.C., told police that he had driven J.D.H. and others to the parking lot where Ojeda was carjacked and then met back up with them later. When they met after the carjacking, J.D.H. was driving the stolen Jeep and had a pistol in his lap. Someone told K.C. not to touch anything in the stolen vehicle because J.D.H. had "caught a body, " which Detective Moss testified meant that J.D.H. had killed someone.

         Another co-actor, T.G., was questioned by police and eventually identified J.D.H. as the person who drove the stolen Jeep. Detective Ross also interviewed J.D.H. Detective Ross testified that J.D.H. changed his account of events repeatedly and placed blame for both the robbery and the murder on others, including K.C. and T.G. However, Detective Ross also testified that J.D.H. eventually admitted to participating in the aggravated robbery by telling Ojeda to hurry up and get her kids out of the Jeep and by leaving in Ojeda's Jeep.

         Detective Ross also testified that he was given the recording of a phone call between J.D.H. and K.C.'s mother, made on March 1, 2017. In this recording, J.D.H. admitted to driving the stolen Jeep, backing into another vehicle, and fleeing because he was driving a stolen vehicle. J.D.H. told K.C.'s mother that T.G. had fired the shots at the other car. However, J.D.H. also stated that he did not believe that the police had any evidence against him, but if they did he would confess. The juvenile court admitted a copy of the phone call into evidence.

         J.D.H. called private investigator Charles Marler to testify at the certification hearing. Marler testified that he and his partner conducted an investigation of the underlying offenses and did not find anything "to show that [J.D.H.] shot the victim in this, " but they "did find information that [T.G.] did." He testified that they interviewed witnesses, including J.D.H., reviewed the police reports, and listened to the phone call between K.C.'s mother and J.D.H. Dr. Wittig also testified regarding her psychiatric evaluation of J.D.H. and the report she filed with the court.

         The juvenile court signed an order waiving its jurisdiction on November 1, 2017. In the four-and-a-half page order, the juvenile court made numerous fact findings. It found that there was probable cause to believe that J.D.H. committed the offenses of murder and aggravated robbery, both first degree felony offenses, as alleged in the petitions; that J.D.H. was fourteen years old at the time he committed the offenses; and that J.D.H. was properly served.

         The juvenile court enumerated the factors it considered in making its ruling, including the fact that J.D.H. committed his offenses against "the person of another" in "two separate criminal transactions." It listed the details of the offenses it considered "particularly egregious and aggravating" as including the carjacking of Ojeda and her family, including two young children, and the shooting death of Mills, who was likewise in the car with her family, including two young children. The juvenile court also recited evidence gathered by police during their investigation and the recorded phone call between J.D.H. and K.C.'s mother, noting that J.D.H.'s tone in the phone call was "consistent with someone who committed the murder, but [was] trying to cover it up and blame others" and that he made "tacit admissions that he did it."

         The juvenile court expressly stated that it "reviewed and considered the Sophistication and Maturity of [J.D.H.], " and it made specific fact-findings that "the certification evaluation psychological evaluation reports [J.D.H.] is of average criminal sophistication." The juvenile court's findings gave "great weight" to J.D.H.'s level of criminal sophistication, particularly in light of "the recorded phone call [in which J.D.H.] state[d] he would only confess if confronted with the evidence by the police and impl[ied] he would otherwise get away with his crime." The juvenile court also gave greater weight to the facts that his two latest offenses were both crimes against persons and that he had had numerous previous juvenile referrals.

          Regarding J.D.H.'s record and previous history, the juvenile court found, in support of discretionary transfer, that J.D.H. "was first referred to juvenile court on 2/13/15 for the offense of Criminal Mischief, " and it outlined in detail his subsequent offenses. The juvenile court specifically found that J.D.H. "has now violated his probations again on the [charges for] Burglary of a Motor Vehicle [and] Unauthorized Use of a Motor Vehicle [by] having committed the offenses of Murder and Aggravated Robbery"; that both of those violations of probation were pending with the juvenile court; and that the underlying aggravated robbery and murder charges were J.D.H.'s "6th and 7th referrals for criminal offenses in addition to other referrals for probation non-compliance." The juvenile court also listed twenty-one occasions on which J.D.H. was "written up" for rule violations during the sixth months he was detained in the Juvenile Detention Center, involving behavior such as engaging in physical altercations, making threats, disrupting facility activities, and disrespecting staff.

         The juvenile court found that J.D.H. "is believed to be a member of the JACC BOYS clique" and that "[h]e was on Gang Caseload [during previous referrals to the juvenile justice system], but failed to attend the Gang Alternative Prevention Program." The juvenile court also found that J.D.H. had been found unconscious after smoking synthetic marijuana and that he had failed to appear for scheduled appointments following his release from treatment after that episode. It found that he had poor school attendance, that he "had been placed on an ankle monitor [on] 1/12/17, but accumulated 18 curfew violations and it was removed, " and that one of the reports filed with the court "lists [J.D.H.] as a 'High' risk to re-offend."

         Finally, the juvenile court stated in its order that it "reviewed and considered the Prospects of Adequate Protection of the Public and the Likelihood, if any, of the Rehabilitation of [J.D.H.] by use of the Procedures, Services, and Facilities currently available to the Juvenile Court and based on the above knowledge of the rehabilitative services[.]" It found that J.D.H. "has been previously placed out of his home twice and in the most restrictive probation rehabilitative programs the Court has available on probation, but has returned to court having been referred for more violent and more serious offenses of Murder and Aggravated Robbery." It also found that "the crimes [J.D.H. is] alleged to have committed are so egregious and aggravated that this Court determines based on the offenses and delinquent conduct that he will not be amenable to this Court's further efforts to rehabilitate him."

         Based on its findings, "as well as the totality of the evidence presented in the clerk's record, at the hearing, in the written reports, studies, and investigations, " it ordered and certified that its jurisdiction be waived and that J.D.H.'s cases be transferred to criminal district court and for J.D.H. to be remanded "for criminal proceedings to be dealt with as an ...

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