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In re A. M.

Court of Appeals of Texas, First District

June 28, 2018

IN THE MATTER OF A. M.

          On Appeal from the County Court at Law No 1 Fort Bend County, Texas Trial Court Case No. 12-CJV-017003

          Panel consists of Justices Higley, Brown, and Caughey.

          MEMORANDUM OPINION

          Harvey Brown Justice

         This case involves the interpretation and application of a since-amended statute concerning the transfer of minors to criminal district court to be tried as adults. The statute has been amended in a manner that may have avoided the result we are bound to reach here, but the disposition of this appeal must be resolved under the earlier version of the statute.

         When Antonnyer Morrison was a minor, he was indicted for murder. In June 2012, after Morrison had turned 18, the juvenile court heard and granted the State's petition for discretionary transfer from juvenile court to criminal district court. The case was transferred, and Morrison was tried as an adult, convicted of murder, and sentenced to 45 years' confinement.

         Our sister court subsequently vacated the criminal district court's judgment because the juvenile court did not make the requisite findings under Section 54.02(j) of the Family Code. Morrison v. State, 503 S.W.3d 724, 725, 728 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd). Relying on a recently-issued opinion by the Court of Criminal Appeals, our sister court explained that when a transfer occurs after a juvenile's 18th birthday, Section 54.02(j)(4) requires the State to prove that it was not practicable to proceed to certification before the juvenile's 18th birthday. Id. at 727 (citing Moore v. State, No. PD-1634-14, 2016 WL 6091386 (Tex. Crim. App. Oct. 19, 2016)).[1] At the June 2012 transfer hearing, the State presented no evidence that it was not practicable to proceed before Morrison turned 18. The State instead argued that Section 54.02(j) required only that the transfer petition be filed-but not ruled on-before Morrison turned 18. Our sister court rejected this argument, remanded the case to the juvenile court to afford the State an opportunity to satisfy its burden of proof, and ordered that the juvenile court file findings of fact in support of its ruling. Morrison, 503 S.W.3d at 728.

         On remand, the State filed an amended petition, and the juvenile court held a hearing at which the State presented testimony from the lead investigator, firearms examiner, and probation officer, among others. However, none of the district attorneys involved in the investigation or prosecution testified. The juvenile court found that the State proved by a preponderance of the evidence that, for reasons beyond its control, it was not practicable to proceed in the juvenile court before Morrison's 18th birthday. The juvenile court entered 50 fact findings detailing the murder investigation's chronology, Morrison's arrest, and the transfer proceedings. None of the fact findings addressed whether it was practicable for the State to take certain actions during various stages of its investigation to expedite the transfer hearing or whether the State's failure to take such actions was caused by the prosecutor's erroneous interpretation of Section 54.02(j). Instead, the juvenile court simply stated in a conclusion of law that it was not practicable for the State to have proceeded before Morrison's 18th birthday.

         In a single issue, Morrison argues that the juvenile court erred in waiving its jurisdiction because the State failed to prove by a preponderance of the evidence that, for a reason beyond the State's control, it was not practicable to proceed to certification before Morrison turned 18. See Tex. Fam. Code §§ 54.02(j)(4)(A), 56.01(c)(1)(A); Tex. Penal Code § 19.02(b).

         After Morrison's 18th birthday, the Legislature amended the statute governing a juvenile court's jurisdiction over incomplete proceedings. Acts 2013, 83rd Leg., ch. 1299 (H.B. 2862), § 7, eff. Sept. 1, 2013. Under the current statutory scheme, when the State files a petition to transfer before the juvenile turns 18, the juvenile court retains jurisdiction to rule on the petition after the juvenile turns 18 so long as the juvenile court finds that the prosecutor exercised due diligence in an attempt to complete the transfer proceeding before the juvenile's 18th birthday. Tex. Fam. Code § 51.0412. But under the scheme in effect at the time of June 2012 transfer hearing-which is the version that continues to apply to this appeal-the juvenile court had to find that it was not practicable to proceed before Morrison's 18th birthday for a reason beyond the control of the State for the juvenile court to retain jurisdiction. Id. § 54.02(j)(4)(A).[2] The former scheme imposes a higher burden on the State because impracticability is more difficult to prove than due diligence and because "the State" includes not only the prosecution but law enforcement as well.

         Bound by the earlier version of the statute, we consider the evidence of impracticability for reasons beyond the State's control. The evidence demonstrates a lack of urgency at several points during the criminal investigation and while the State petitioned for transfer. To begin, no one expedited the firearms analysis, and the State waited for that analysis before proceeding against Morrison. While Morrison was charged and apprehended approximately 8 weeks before his 18th birthday, there is no evidence that the prosecutor attempted to expedite the transfer hearing after his arrest. Nor is there any evidence that the juvenile court was unable to hear the petition before Morrison's 18th birthday. Morrison's psychological evaluation and social home study report, both of which were needed for the transfer hearing, were not completed until after Morrison turned 18-but the evidence shows that both reports could have been completed earlier had the State not delayed in providing the psychiatrist and juvenile probation officer the necessary information for the reports. In other words, the evidence shows that it was practicable to proceed before Morrison's 18th birthday. But, as shown by the prosecutor's statements during the June 2012 transfer hearing, before Moore was decided, the prosecutor believed it was necessary only to file-but not resolve- the transfer motion before the defendant turned 18. Moore held otherwise, and we are bound by that ruling.

         We hold that the State failed to prove that it was not practicable to proceed before Morrison's 18th birthday for a reason beyond the State's control and that the juvenile court erred in transferring the case. Accordingly, we must vacate the juvenile court's order and dismiss the case.

         Background

         On August 26, 2010, the complainant, seventeen-year-old Kristian Sullivan, who was a member of the gang "Forever About Bread," was shot and killed outside his home in a gang-related shooting. No weapons were found at the scene, and no eye-witnesses came forward. Two different brands of casings were found, but they were of the same caliber. The police suspected, but were not sure, that there were two gunmen. At the time of Sullivan's murder, Morrison was sixteen years and five months old.

         Before Sullivan's death, there had been "numerous, numerous crimes, shooting, fights, that were going on" between feuding gang members. While police were still on the scene of Sullivan's murder, another shooting occurred at the home of a rival "100 Clikk" gang member. The shooting appeared to be in retaliation for Sullivan's murder.

         The lack of evidence and the reticence of gang members to speak with the police made the investigation difficult. Sullivan, known as "K-Su," was "very involved" in the leadership of FAB. Sullivan's residence was typically where FAB gang members would "hang out." Sullivan's friends were not cooperative with the police; there was testimony that "traditionally gang members don't just come to police with information." Police had multiple names, but researching those names, and generating and corroborating information, took substantial time. Missouri City Police Sgt. K. Tullos testified that any member of 100 Clikk "would be a possible suspect at the time." Around the time of Sullivan's murder, 100 Clikk had about 300 members.

         Morrison's name was first mentioned on December 6, 2010 by a senior member of 100 Clikk, Michael Wilbourn, who was then in federal custody for aggravated robbery. Wilbourn identified "Tony T" as a person who wanted to sell him "a gun used to kill ole boy." Missouri City Police Lt. R. Terry testified that Wilbourn did not implicate himself in the murder and was not credible. At that point, there was nothing to corroborate Wilbourn's statement, but Lt. Terry "still [had] to follow up on his statement just to verify."

         Lt. Terry testified that he learned that Tony T's real name was Antonnyer Morrison. Morrison was a student at Marshall High School, and he lived just outside Missouri City. Lt. Terry went to Morrison's address, but he found a vacant house. Lt. Terry later learned that Morrison was in juvenile detention in Fort Bend County, but he did not speak with Morrison. Lt. Terry then learned that Morrison had been released from juvenile detention on December 8, 2010. Lt. Terry admitted that he did not attempt to locate Morrison, in part, because he did not believe he could get information about a juvenile on probation.

         Lt. Terry testified that, as of December 7, 2010, he did not have an identified suspect. Rather, he had street names for multiple individuals, nothing to corroborate their involvement, and a lack of cooperation from their associates. Lt. Terry looked to the Special Crimes Unit, who were "more involved in dealing with gang members and street activity" and who were talking to gang members during "gang sweeps."

         From December 2010 to June 2011, the SCU worked to document gang members and generate leads in Sullivan's murder. The SCU was "busy"-over 100 gang members were documented and entered into the DPS database during this time, and a lot of information was coming in.

         On June 3, 2011, Lt. Terry was promoted, and the Missouri City Police Chief turned the investigation over to SCU Sgt. R. Ramirez. Around that same time, Sgt. Ramirez spoke to 100 Clikk member Darius Pye, "a respected high ranking gang member," who implicated a fellow gang member, Sterlyn Edwards, in the murder. Pye said that he was in a car driven by Edwards, who was talking on the phone to a rival FAB gang member. According to Pye, Edwards told the rival gang member, "I'll bang, bang you like I bang, bang K-Su." This was the first break in the case, but the information still needed to be corroborated.

         Sgt. Ramirez testified that on August 18, 2011, he met with Donald Reed, a member of 100 Clikk, who said that Darius Downer, another member of 100 Clikk, told him that Edwards had shot Sullivan. Sgt. Ramirez spoke with Downer, who said that Edwards had tried to sell him a gun after Sullivan's murder. Downer was the second 100 Clikk member to implicate Edwards, a fellow 100 Clikk member, and Sgt. Ramirez thought this information was credible.

         Sgt. Ramirez learned that a week before Sullivan's murder, someone named "Rene" was shot at Downer's house by FAB gang members. Sgt. Ramirez met with Rene, who was still recovering from his gunshot wound. Rene said that he was not a gang member but that he liked to play basketball with 100 Clikk members and that one of his best friends was Morrison. This information that one of Morrison's best ...


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