IN THE MATTER OF A. M.
Appeal from the County Court at Law No 1 Fort Bend County,
Texas Trial Court Case No. 12-CJV-017003
consists of Justices Higley, Brown, and Caughey.
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
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
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)). 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.
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.
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).
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). 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.
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
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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