Appeal from the County Court at Law No. 1 Fort Bend County,
Texas Trial Court Case No. 12-CJV-017003.
consists of Justices Keyes, Higley, and Landau.
Beth Landau, Justice.
police investigation determined that A.M. was involved in a
retaliatory gang shooting that resulted in the death of a
rival gang's leader. Legal proceedings were initiated in
juvenile court because A.M. was sixteen years old at the time
of the shooting and juvenile courts hold exclusive
jurisdiction over minors. On the State's motion to
certify A.M. as an adult to face criminal charges in district
court, the juvenile court issued an order finding that the
State met its burden under Family Code section 54.02(a) for
waiver of jurisdiction and transfer to district court.
A.M. was convicted, an appellate court vacated his conviction
and remanded the matter to the juvenile court, having
concluded that (1) although the State had argued that Section
54.02(a) was the correct standard for waiver and transfer,
Section 54.02(j) was the applicable standard because A.M.
turned eighteen before the waiver and transfer hearing
occurred and (2) the State had not presented any evidence
directed to the Subsection (j) statutory requirements.
Morrison v. State, 503 S.W.3d 724, 727-28 (Tex.
App.-Houston [14th Dist.] 2016, pet. ref'd) (remanding
for review of evidence in support of waiver and transfer
under Section 54.02(j)).
remand, the juvenile court heard evidence from
law-enforcement witnesses and others. The juvenile court
ruled that the State met its burden under Subsection (j),
 and the
court waived its jurisdiction to allow transfer for criminal
proceedings against A.M. as an adult.
single issue, A.M. argues that the trial court abused its
discretion in waiving its jurisdiction because the State
"failed to prove by a preponderance of the evidence that
it was beyond the control of the State to proceed to
certification before [A.M.'s] 18th birthday." A.M.
seeks a reversal of the trial court's waiver order and
dismissal of the case against him for lack of jurisdiction.
now an adult and all parties agree that the Family Code
statutory scheme that was in place at the time the State
petitioned for certification applies to our
that scheme, A.M. can no longer be adjudicated in juvenile
court. The disposition of this appeal can take only one of
two forms. If we were to determine that the trial court did
not abuse its discretion in waiving jurisdiction, we would
affirm the trial court's order and A.M. would be retried
as an adult for the murder. If, on the other hand, we were to
conclude that the trial court abused its discretion in
waiving jurisdiction, our only option would be to reverse and
render a judgment of dismissal.
the trial court abused its discretion in concluding that the
State met its burden under Section 54.02(j)(4)(A), we reverse
the trial court's order and render a judgment of
of Exclusive Jurisdiction and Transfer for Criminal
contends that the juvenile court abused its discretion in
waiving its exclusive jurisdiction and transferring his
proceeding to criminal district court for prosecution as an
adult. Specifically, A.M. argues that the State failed to
meet its burden, under Section 54.02(j)(4)(A) of the Family
Code, to establish "by a preponderance of the evidence
that it was beyond the control of the state to proceed to
certification before [A.M.]'s 18th
birthday." Before turning to the lengthy factual
background of this case, we first set forth the statutory
criteria for discretionary waiver and transfer that must
guide the evidentiary review.
Law on waiver of exclusive jurisdiction over minors
and standard of review on appeal
ordinarily are not subject to criminal proceedings like
adults." In re S.G.R., 496 S.W.3d 235, 238
(Tex. App.-Houston [1st Dist.] 2016, no pet.). When a child
engages in conduct that would be considered criminal if
committed by an adult, it is called "delinquent
conduct." See Tex. Fam. Code §
51.03(a)(1). Murder, when committed by a minor, constitutes
delinquent conduct. See id.; see also Tex.
Penal Code § 19.02.
courts have exclusive original jurisdiction over cases
involving delinquent conduct by children between ten and
seventeen years old. Tex. Fam. Code §§ 51.02(2)(A),
51.04(a). Delinquency proceedings against minors proceed in
juvenile court under the Juvenile Justice Code. See
id. §§ 51.01-61.107. A juvenile court may
waive its exclusive original jurisdiction under certain
conditions and allow transfer of the proceeding to a district
court for criminal prosecution. Id. § 54.02(a),
(j). "Generally, the transfer of a juvenile offender
from a juvenile court to a criminal district court for
prosecution as an adult should be regarded as the exception,
not the rule." In re J.W.W., 507 S.W.3d 408,
414 (Tex. App.-Houston [1st Dist.] 2016, no pet.) (citing
Moon v. State, 451 S.W.3d 28, 36 (Tex. Crim. App.
juvenile transfer proceeding, the State must produce evidence
that persuades the juvenile court, by a preponderance of the
evidence, that waiver of its exclusive original jurisdiction
is appropriate. Moon, 451 S.W.3d at 40-41, 45. What
the State must prove to obtain transfer depends on whether
the minor has reached the age of eighteen by the date of the
transfer hearing. "Section 54.02(a) applies where the
juvenile is less than eighteen years of age at the time of
the transfer hearing," while "Section 54.02(j)
applies where the juvenile is eighteen years old at the time
of the transfer hearing." In re D.L.C., No.
06-16-00058-CV, 2017 WL 1055680, at *4 (Tex. App.-Texarkana
Mar. 21, 2017, no pet.) (mem. op.); see Morrison,
503 S.W.3d at 727-28.
was sixteen years old when the rival gang leader was shot and
killed. He was seventeen years old when he was arrested and
the State filed its motion for waiver and transfer. But he
was eighteen years old when the juvenile court held the
transfer hearing and later issued its ruling.
A.M. turned eighteen, the juvenile court's jurisdiction
was limited to either dismissing the case or transferring the
case to criminal district court. Moore v. State, 532
S.W.3d 400, 404-05 (Tex. Crim. App. 2017); In re
N.J.A., 997 S.W.2d 554, 555-56 (Tex. 1999). If the State
did not meet its burden under Section 54.02(j), the juvenile
court's only option was to dismiss the case against A.M.
Morrison, 503 S.W.3d at 727-28; see Moore,
532 S.W.3d at 405; N.J.A., 997 S.W.2d at 557.
only subpart of Section 54.02(j) that was at issue on remand
and now on appeal is whether the State met its burden, under
Section 54.02(j)(4)(A) to establish "from a
preponderance of the evidence that . . . for a reason beyond
the control of the state it was not practicable to proceed in
juvenile court before the 18th birthday of the person . . .
." Tex. Fam. Code § 54.02(j)(4)(A); see
Morrison, 503 S.W.3d at 727-28. Subsection (j)(4)(A)
"is meant to limit the prosecution of an adult for an
act he committed as a juvenile if his case could reasonably
have been dealt with when he was still a juvenile."
Moore, 532 S.W.3d at 405 (concluding that
State's "failure to get around to this case in time
did not meet [its] burden" under Section
reviewing a discretionary transfer, we evaluate the trial
court's findings of fact under traditional
sufficiency-of-the-evidence principles. In re J.G.,
495 S.W.3d 354, 369 (Tex. App.-Houston [1st Dist.] 2016, pet.
denied) (citing Moon, 451 S.W.3d at 47). Under a
legal-sufficiency challenge, we credit evidence favorable to
the challenged finding and disregard contrary evidence unless
a reasonable factfinder could not reject the evidence.
Id. at 369-70 (citing Moon v. State, 410
S.W.3d 366, 371 (Tex. App.-Houston [1st Dist.] 2013),
aff'd, 451 S.W.3d 28 (Tex. Crim. App. 2014)). If
there is more than a scintilla of evidence to support the
finding, the no-evidence challenge fails. Id. at
370. Under a factual-sufficiency challenge, we consider all
the evidence presented to determine if the court's
finding is so against the great weight and preponderance of
the evidence as to be clearly wrong or unjust. Id.
(citing Moon, 410 S.W.3d at 371).
findings of the juvenile court are supported by legally and
factually sufficient proof, then we review the ultimate
waiver decision under an abuse-of-discretion standard.
Moon, 451 S.W.3d at 47; In re H.Y., 512
S.W.3d 467, 478-79 (Tex. App.-Houston [1st Dist.] 2016, pet.
denied). As with any decision that lies within the trial
court's discretion, the question is not whether we might
have decided the issue differently. Moon, 451 S.W.3d
at 49. Instead, we ask whether the juvenile court's
transfer decision was "essentially arbitrary, given the
evidence upon which it was based, or [whether] it
represent[ed] a reasonably principled application of the
legislative criteria." In re J.G., 495 S.W.3d
at 370 (quoting Moon, 451 S.W.3d at 47). "A
trial court has no 'discretion' in determining what
the law is or applying the law to the facts. Thus, a clear
failure by the trial court to analyze or apply the law
correctly will constitute an abuse of discretion."
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
that standard in mind, on remand four years later, the State
presented evidence to satisfy its burden to establish by a
preponderance of the evidence that, due to a reason back then
that was beyond its control, it was "not practicable to
proceed" in juvenile court before A.M.'s eighteenth
birthday. See Tex. Fam. Code § 54.02(j)(4)(A);
Morrison, 503 S.W.3d at 727-28.
Testimony regarding law enforcement's initial
view of the case
original lead investigator assigned to this gang murder was
Lieutenant R. Terry of the Missouri City Police Department.
The matter was later assigned to Sergeant R. Ramirez, a
member of the Sugar Land Police Department who was also the
supervisor of a tri-city Special Crimes Unit that had
recently been formed to support gang-related and other
specialized criminal investigations in Sugar Land, Stafford,
and Missouri City. Both officers testified.
Terry received a report of a homicide in Missouri City the
evening of August 26, 2010. Terry went to the home of
Kristian Sullivan, who had been shot multiple times and
killed in his front yard. Sullivan was a known leader of a
high-school-affiliated gang known as FAB. At the scene, Terry
found spent shell casings that were all the same caliber but
were two different brands or manufacturers. This meant there
was either one shooter who used mismatched ammunition or two
shooters-at this point it was unclear. Terry's initial
view of the case, formed while at the crime scene that
evening, was that it was likely a gang-related shooting
involving either one or two shooters.
their testimony, both Terry and Ramirez discussed the
inherent difficulties in investigating gang crimes: gang
members generally are reluctant to implicate fellow gang
members; when they do, their statements are often
self-serving and not credible; when a gang member provides a
lead, the name given is often a street name or gang name that
the officers have trouble linking to a particular individual;
and, finally, even when the officers suspect that the person
who committed the crime has a particular gang affiliation,
the officers still have a relatively large list of possible
suspects because some local gangs have hundreds of members.
These gang-specific concerns were expected to make the case
development more difficult.
Testimony detailing the criminal investigation
between August 2010 and October 2011
2010 to November 2010: Beginning of criminal
Terry was at the murder scene, one of Sullivan's friends,
Curtis Taylor, suggested to Terry that Rickel Baker might
have been the shooter. Baker was a member of a rival gang
known as 100 Clikk. Before Terry completed his on-site
investigation, he received a call that Baker had been shot at
his house in a drive-by shooting. Terry suspected the
shooting was retaliatory. According to Terry, the shootings
appeared to be part of the on-going gang violence between FAB
and 100 Clikk.
days later, another 100 Clikk gang member, Darius Pye, was
arrested in Pearland and claimed to have information related
to Sullivan's murder. Terry met with Pye, who alleged
that another person known as "Black Mike" had been
involved in the murder. Terry determined that "Black
Mike" was a 100 Clikk gang member named Michael Wilbourn
and met with him on September 1, 2010, less than one week
after the murder. Wilbourn denied involvement.
the next month, the police pursued leads and excluded a
couple people as suspects.
October 2010, Wilbourn reached out to police to provide
additional information. At the time, Wilbourn was in a
federal detention facility on charges of aggravated robbery.
The FBI assisted in arranging the interview, which occurred
in December 2010.
2010: First allegation that A.M. is connected to murder
his interview, Wilbourn told Terry that a person referred to
as "Tony T" had tried to sell Wilbourn the gun
"that was used to kill ole boy." Terry understood
at the time that Wilbourn was referring to Sullivan's
death. Terry testified that he did not find Wilbourn's
statement to be credible, but he intended to follow up on the
next day, Terry had figured out that "Tony T" was
A.M.'s 100 Clikk gang name. Terry went to a house that
had been linked to A.M., intending to interview him, but the
house was vacant. Terry left a business card on the door. A
week later, Terry learned that A.M. had recently been
released from a juvenile detention center and, as a condition
of his release, A.M. was required to wear an ankle device
that would monitor his location. Terry did not ask the
juvenile probation department to give him the address linked
to the ankle monitor. When asked why he did not ask for the
linked address to go interview A.M., Terry responded,
"Because I didn't." Terry did not otherwise
attempt to interview A.M.
summarized the investigation status as of December 2010 as
I really don't have a suspect identified at this time
because I have multiple individuals who are providing with
street names who we've identified some, but we don't
have anything to corroborate what each of those individuals
said or to provide that each individual may be involved in
this homicide. . . . You really can't move forward
without tangible evidence that you can link a person or a
named person to the crime or to the criminal offense.
There were no additional direct leads for several months.
2011: New leads focus on another 100 Clikk gang member,
Sterlyn Edwards, with no mention of A.M.
2011, the murder investigation was assigned to the Special
Crimes Unit led by Sergeant R. Ramirez. The Special Crimes
Unit was focused on maintaining frequent, direct contact with
gang members in a tri-city area that included Sugar Land,
Stafford, and Missouri City. These targeted contacts were
known as "gang sweeps." During weekly gang sweeps,
the Special Crimes Unit officers would find and document gang
members and, during the interactions, ask the gang members
for information about Sullivan's murder.
Terry and Ramirez described the gang members as
uncooperative. When the gang members provided possible leads,
they appeared to be self-serving statements that the officers
were unable to corroborate. Ramirez described it as
"kind of just names that were bouncing around"
Ramirez took over the investigation, he sought to
re-interview Pye and Wilbourn. Both 100 Clikk members
provided additional information during their second
interviews. Pye was interviewed in June 2011. He indicated
that fellow 100 Clikk gang member, Sterlyn Edwards, had been
involved in Sullivan's murder. Pye told Ramirez that he
had overheard Edwards threaten to shoot a FAB gang member
like he shot the FAB leader, Sullivan. According to Ramirez,
"this was the first actual break in the case"
because "one gang member . . . was implicating someone
else within his gang."
the next few months, four additional people-100 Clikk and FAB
members-further implicated Edwards.
2011: Edwards implicates A.M., and two non-gang members
connect A.M. to Sullivan's shooting
October 2011, Sergeant Ramirez interviewed Edwards. Edwards
said that he had become friends with rival gang member
Sullivan. One day, Edwards called Sullivan to set up a
meeting at which two fellow 100 Clikk gang members-A.M. and
Joshua Patterson-would buy marijuana from Sullivan. According
to Edwards, the only purpose of the visit was to buy
marijuana. Edwards told Ramirez that he, A.M., and Patterson
drove to Sullivan's house in a borrowed car, A.M. and
Patterson got out of the car, and he stayed in the car.
During the interview, Edwards minimized his role and,
according to Ramirez, "placed all the
responsibility" on A.M. and Patterson.
also told Ramirez about two young women who could provide
additional information. Ramirez interviewed the women and
determined that they had loaned their Taurus to the 100 Clikk
gang members that night. The two stated that they were with
Edwards, Patterson, and A.M. at A.M.'s house. Edwards,
Patterson, and A.M. were "plotting something" using
"gang code" that the women did not understand. When
they prepared to go out, one of the women decided not to go
because she did not want to be involved; the other agreed to
go along. The woman who went out with the gang members told
Ramirez that they left A.M.'s house in the Taurus with
Patterson driving, they drove to Sullivan's house, A.M.
and Edwards got out of the car, she heard gun shots, A.M. and
Edwards returned to the car, Edwards recounted how Sullivan
looked when he shot him, and A.M. was comparatively quiet.
After they dropped A.M. at his house, she saw Patterson hide
a gun in the hood of the Taurus.
same month, a non-gang member, R. Moreno, told Ramirez that
he was A.M.'s best friend and that he had been shot while
hanging out at a 100 Clikk house a year earlier. Ramirez
found that information significant because it provided a
possible motive for Sullivan's shooting in that gang
violence is often retaliatory.
point-October 2011-based on his investigation, and
particularly based on the information he received from
Edwards and the two young women, Ramirez considered both
Edwards and A.M. to be suspects in Sullivan's murder.
Law on holding a person criminally responsible for
another's acts, Sergeant Ramirez's testimony on
timing of meeting the probable-cause threshold to arrest
A.M., and additional testimony on seeking and obtaining
corroborating evidence before arresting A.M.
Law of parties: criminal responsibility for person
who is not the primary actor
Penal Code authorizes criminal responsibility for a person
who is a "party to an offense" if the offense
"is committed by his own conduct, by the conduct of
another for which he is criminally responsible, or by
both." Tex. Penal Code § 7.01(a). "A person is
criminally responsible for an offense committed by the
conduct of another if . . . acting with intent to promote or
assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other
person to commit the offense." Id. §
party is charged for an offense in which he was not the
"primary actor," the State must prove, first, the
conduct constituting the offense, and, second, an act by the
defendant done with the intent to promote or assist the
criminal conduct. Beier v. State, 687 S.W.2d 2, 3
(Tex. Crim. App. 1985). The law of parties establishes a
party's responsibility for the conduct of another based
on the party's "level of participation in the
offense, even if he was not the proverbial triggerman."
McIntosh v. State, 52 S.W.3d 196, 200-01 (Tex. Crim.
is sufficient to sustain a conviction under the law of
parties if it shows that the defendant was physically present
at the offense and encouraged the commission of the offense
either by words or other agreement. Cordova v.
State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). An
agreement among parties to act together in common design is
seldom proven by words. Often, the State must rely on the
actions of the parties, shown through direct or
circumstantial evidence, to establish the understanding or
common design to commit the criminal offense. Marable v.
State, 85 S.W.3d 287, 293 (Tex. Crim. App. 2002); In
re J.S., No. 03-17-00344-CV, 2018 WL 4100785, at *2
(Tex. App.-Austin Aug. 29, 2018, no pet.) (mem. op.);
Miller v. State, 83 S.W.3d 308, 314 (Tex.
App.-Austin 2002, pet. ref'd). Any agreement must have
been made before or contemporaneous with the criminal event,
but in determining whether one has participated in an
offense, the court may examine the events occurring before,
during, and after the commission of the offense.
Miller, 83 S.W.3d at 314.
presence at the scene of a crime does not implicate an
individual as a party. However, participation in a criminal
offense may be inferred from the circumstances." In
re J.S., 2018 WL 4100785, at *2 (citing Beardsley v.
State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987)).
are numerous cases analyzing criminal liability for
gang-related and other drive-by shootings. In one
gang-related drive-by shooting case, an appellate court held
that there was legally sufficient evidence to affirm a murder
conviction tried under a law-of-parties theory on evidence
that a man was gunned down outside his home, two cars drove
past his house with occupants shooting at the man, one bullet
killed the man, and the defendant drove one of the two cars.
Leal v. State, No. 13-04-00287-CR, 2005 WL 2476260
(Tex. App.-Corpus Christi Oct. 6, 2005, no pet.) (mem. op.,
not designated for publication). The defendant's
conviction under a law-of-parties theory did not require
evidence that the defendant fired the bullet that killed the
man, that he fired a gun at all, or even that he drove the
particular car from which the fatal shot was fired. See
id. at *3 ("We believe appellant's actions in
driving a vehicle used in the drive-by shooting aided or
attempted to aid the person who murdered Medina, even if that
person was not in appellant's vehicle. From this
circumstantial evidence, the jury could have concluded that
appellant intended to promote or assist the commission of
Medina's murder."); see Anguiano v. State,
No. 05-92-01065-CR, 1993 WL 438181 (Tex. App.-Dallas Oct. 26,
1993, no pet.) (mem. op., not designated for publication)
(appellate court affirmed murder conviction under
law-of-parties theory in gang-related drive-by shooting in
which defendant knew of plan to fight, drove vehicle to fight
location, shot his gun "into the air," drove from
scene, and helped dispose of weapons, holding that
"evidence is sufficient to establish that [the
defendant] was aware that his actions were reasonably certain
to aid in causing the shooting death" of individual
killed); Esparza v. State, No. 14-95-01257-CR, 1998
WL 724364 (Tex. App.-Houston [14th Dist.] Oct. 8, 1998, no
pet.) (not designated for publication) (appellate court
affirmed murder conviction under law-of-parties theory on
evidence that defendant and person killed were in rival
gangs, they had history of gang altercations, defendant was
driver of vehicle used in drive-by shooting and leaned out of
his vehicle holding gun, concluding that factfinder
reasonably could have determined that defendant had requisite
intent to aid passenger-shooter in act of shooting person who
was killed even though there was no evidence that defendant
fired his gun).
Sergeant Ramirez's testimony that the police had
probable cause to arrest A.M. by mid-October
2011 under a law-of-parties theory of criminal
Ramirez was specifically asked whether he was familiar with
the law of parties and whether he believed in mid-October
2011-based on the information he had after interviewing
Edwards and the two young women-that A.M. could be held
criminally responsible for Sullivan's murder as a party
to the offense. Ramirez replied, "Absolutely, yes."
He was asked the same question about Patterson and again
was asked why, then, he did not request an arrest warrant for
Edwards, Patterson, or A.M. in mid-October 2011. He
responded, "We weren't there yet. There's one
other person we needed to talk to." Ramirez explained
that he was referring to Patterson. He later added that he
also wanted to talk to A.M.
Sergeant Ramirez's testimony on further criminal
investigation after probable-cause threshold
had been met for A.M.
interviewed Patterson in late-October 2011. During the
interview, Patterson admitted that he drove the Taurus to
Sullivan's house. Patterson told Ramirez that Edwards and
A.M. got out of the car just before Patterson heard the
gunshots. Patterson said that, later that night, Edwards gave
him a gun to conceal in the hood of the Taurus.
testified that he requested an arrest warrant for Patterson
the same day he interviewed him in late-October 2011.
Ramirez's explained that his primary focus, at that time,
was on securing Patterson's immediate arrest because he
was the only of the three 100 Clikk gang members in the
Taurus that night who was not already in custody somewhere
for some offense. Ramirez was concerned about the safety of
the two young women who had provided information in the
criminal investigation. A.M. and Edwards were already
confined and posed no threat to the women's safety.
Patterson, though, was still free.
Ramirez testified that he was focused only on securing
Patterson's arrest, he also testified that he requested
A.M.'s arrest at the same time as Patterson's. It is
undisputed that Ramirez presented information on October 31,
2011 to obtain an arrest warrant for Patterson, Edwards, and
A.M. Consistent with requesting an arrest warrant for these
three gang members, Ramirez testified that he believed he had
probable cause to arrest Patterson, Edwards, and A.M. on
October 31, 2011.
having requested A.M.'s arrest, Ramirez testified that
his intention, at that time, was to wait for physical
evidence to corroborate a two-shooter theory before moving
forward against A.M. He testified, "I think I was ready
to move forward with the warrant like on Tony T,"
referring to A.M.'s gang name, but he also noted that he
"didn't have any physical evidence . . . as to his
involvement" or to "corroborate he was there."
Ramirez explained that he still "wanted some more"
point, when Ramirez moved forward with the arrest of
Patterson based on probable cause but did not move forward
with the arrest of A.M. despite probable cause, A.M. was
seventeen years and 7 months old. He was only five months
from his eighteenth birthday. Ramirez was asked about his
decision to wait to pursue A.M.'s arrest, given that A.M.
was almost eighteen years old. Ramirez explained that it was
never conveyed to him that A.M. was about to turn eighteen or
that his age created any prosecutorial deadlines. Ramirez
stated that he was not aware of any reason for urgency in the
case against A.M.
police investigation continued. In December 2011, Ramirez
re-interviewed Wilbourn, who told Ramirez about an earlier
conversation he had had with A.M. and Edwards. The two had
given Wilbourn a ride because Wilbourn's car had broken
down. They picked Wilbourn up in a borrowed Taurus. During
the car ride, Edwards told Wilbourn that he had been involved
in Sullivan's shooting, A.M. attempted to sell Wilbourn a
gun, and Edwards and A.M. told Wilbourn that the Taurus was
the same car they had used to "do the murder." A.M.
was not arrested on this new information.
Sergeant Ramirez's testimony about waiting to
obtain physical evidence before arresting
waited to arrest A.M. until after he received confirmation
from a firearms lab, in January 2012, that two weapons were
used in the Sullivan murder.When it was pointed out to him that he
did not likewise wait for the lab report to arrest Patterson,
Ramirez agreed that both men already were subject to
prosecution even if the firearms analysis failed to provide
incriminating physical evidence. Probable cause was
established in mid-October 2011. Ramirez explained why he,
nonetheless, waited on the lab report before arresting A.M.:
Yeah, I think what-it's been a while but I think what I
wanted is when I got to the point where I could interview
[A.M.], like I could have physical evidence to bring to that
interview. It's better to have that information with you
so that way if a suspect starts lying to you, that you can
pull something out and say, no, actually I do have proof that
this happened. That would be one reason that I was waiting on
Ramirez's explanation fails to take into account
A.M.'s impending birthday.
Firearms examiner's testimony about findings and
issuance of lab report
the witnesses at the Section 54.02(j) transfer hearing was J.
Turner, the firearms examiner at the Harris County Institute
of Forensic Sciences. She explained the timeline for testing
the casings, reaching the conclusion that two weapons were
used in Sullivan's murder, and conveying that information
First portion of the items were received for analysis
Additional items received from medical examiner
Items removed from the lab so that DNA testing could
be performed before the firearms analysis
Items returned to lab and placed back in line for
analysis “Somebody” requested that the
analysis be “given some priority, ” but
Turner does not know who made the request
Turner began analysis
Turner completed analysis
Technical review completed
Administrative review completed
Written lab report forwarded to law enforcement
according to Turner, the process lasted more than one and
explained that the form used to request an analysis from the
lab did not have a section to mark the work request as a
priority or rush assignment. Turner stated that the lab
nonetheless was willing to accommodate rush requests and that
such requests were "not an uncommon thing." Rush
requests typically were made by phone or email. In 2011, the
lab did not use a tracking method to memorialize phoned
requests to expedite. If anyone called to request a rush in
this case, there would be no record of it.
testified about requests for expedited lab analyses as well.
He stated that the Harris County Ballistics Firearms Lab is
not a part of his police department and that the lab assists
police departments from surrounding areas as a
Harris County isn't part of Fort Bend County. . . And
they're basically doing us a favor by conducting the
firearms examination; and though Fort Bend, we don't have
a lot of murders involving guns, Harris County, they do. So,
I know that they're backlogged. I know that it does take
a while to get firearms labs back.
Ramirez also testified that he knew he was able to request a
rush and had done so in earlier cases. He did not request a
rush in this case because he was unaware there was any need
for a rush: "I didn't see the rush in this case . .
completed her examination on November 4, 2011 and concluded
that two weapons had been used to shoot Sullivan. But her
written report could not be immediately released because the
lab's procedures required a mandatory, internal review.
The first step of the mandatory review was a "technical
review" of the physical evidence to confirm Turner's
conclusions. The lab completed the technical review on
November 17, 2011. Under the labs procedures, lab results
normally would not be released after the technical review;
instead, the release followed the completion of an
administrative review. However, according to Turner, she
would have been permitted to verbally release her findings to
law enforcement after the technical review if she had
received a request to do so. No such request was made.
draft written report was forwarded for the
"administrative review" on November 17, 2011. The
purpose of that review is to analyze the report for
completeness and grammatical errors. The lab completed the
administrative review more than two months later, on January
27, 2012. The lab results were forwarded to law enforcement
the same month.
to Turner, the lab would have permitted release of its
conclusions to law enforcement once the technical review was
completed in November 2011, even though the administrative
review had not been done. Turner testified that she
"wouldn't say that it's a known fact" that
the lab was willing to release ...