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In re E.O.

Court of Appeals of Texas, Second District, Fort Worth

May 30, 2019

In the Matter of E.O.

          On Appeal from the County Court at Law Cooke County, Texas Trial Court No. JV838-18

          Before Sudderth, C.J.; Gabriel and Kerr, JJ. Memorandum Opinion by Justice Gabriel

          MEMORANDUM OPINION

          LEE GABRIEL JUSTICE.

         This is an appeal from the juvenile court's order transferring appellant E.O. (Evan)[1] to an appropriate criminal court to be tried as an adult. In a single issue, Evan argues the juvenile court's decision to transfer him was an abuse of discretion. We disagree and thus affirm.

         I. BACKGROUND

         The evidence presented at the November 27, 2018 transfer hearing consisted of the testimony of several witnesses as well as several documentary and media exhibits. The evidence developed during the hearing revealed the following.

         A. Factual Background

         At approximately 6:30 a.m. on February 6, 2018, Joseph reported to the Cooke County Sheriff's Department that his five-year-old daughter, Madison, was missing from her home. She had last been seen the previous evening asleep in her bed. The Sheriff's Department began an investigation and conducted an exhaustive search for Madison but was unable to locate her. Sheriff's Department investigators sought assistance from the Texas Rangers, and Rangers James Holland and Jeremy Wallace responded to the scene.

         Meanwhile, at approximately 10:15 a.m., several investigators from the Texas Department of Family and Protective Services (DFPS) arrived on scene, which by that time was filled with personnel from the Sheriff's Department, some of whom were interviewing the several individuals who occupied Madison's home. One of the DFPS investigators, Jason Foutch, was asked to assist the Sheriff's Department with those interviews but was prevented from doing so because the scene was still being processed. At approximately 12:00 p.m., after the Sheriff's Department had finished processing the scene, Foutch and the other DFPS investigators entered the home and began interviewing the residents inside, one of whom was Evan. Those interviews eventually led DFPS investigators to conduct their own search for Madison. Evan was involved in that additional search, and at his direction, the search team found Madison underneath a trailer that was two lots to the north of the one where she lived.

         Foutch stated that it had been cold the day Madison was found, stating that the temperature "was in the twenties." When the search party discovered Madison, she was facedown under the trailer, was wearing a pink nightgown, was wet, and was in shock. There was also a plastic garbage bag wrapped around her. Foutch stated that when members of the search party got Madison out from underneath the trailer, he did not know whether she was alive or dead. Other individuals involved in the investigation noticed that Madison had a "chemical smell" such as bleach or some other solvent emanating from her person.

         Madison underwent an evaluation by a sexual assault nurse examiner (SANE), who testified at the hearing by affidavit. The SANE averred that Madison's evaluation revealed that she had suffered acute hymenal tearing and vaginal tearing, and that those areas were actively bleeding at the time of the exam. The SANE further said that she had observed evidence of hemorrhage in Madison's eyes, bruising at various locations on her body, and red linear marks on Madison's neck. The SANE concluded that Madison had been sexually abused and had suffered serious bodily injury as a result of a sexual assault.

         Also testifying by affidavit was a pediatric neurologist who treated Madison in the weeks after the assault. The neurologist averred that in the course of treating Madison, he determined that she had suffered significant neurological injuries as a result of a severe beating of both sides of her head and strangulation. The neurologist stated that Madison suffered seizures throughout her stay in the hospital and that her motor and cognitive abilities were severely impaired because of the injuries she had sustained.

         After Madison was found, Ranger Holland interviewed Evan and noticed what appeared to be bleach stains on his pants. Ranger Holland also smelled an odor of what he called a "Pine Sol type substance" emanating from Evan. During the interview, Evan stated that around 5:00 a.m., he went into Madison's bedroom, picked her up, and put a blanket over her head so that she could not see him. Evan said that he carried Madison to the residence next door, which he knew was unlocked. He then took her into the master bedroom, laid her on the couch, and inserted his penis into her vagina. Evan said that Madison was fighting and screaming and that he held her hands down. Evan stated that he did not speak to Madison during the assault

         Evan stated that he stopped penetration after several minutes. Madison would not stop crying, so Evan punched her in the back of the head, which rendered her unconscious. Evan said that he then used water to clean her vagina, carried her to the abandoned trailer where she was found, placed her underneath it with her pink blanket, and left her there while she was still unconscious. Subsequent DNA testing revealed that the fly of Evan's underwear contained Madison's DNA along with Evan's semen.

         B. Procedural History

         The State filed a petition in the juvenile court alleging that on or about February 5, 2018, Evan, who was fourteen years old at the time, had committed an aggravated sexual assault of a child younger than six years of age; had committed aggravated kidnapping; and had attempted to commit capital murder. The State filed a motion asking the juvenile court to waive its exclusive jurisdiction over Evan and to transfer him to an appropriate criminal court to be tried as an adult. See Tex. Fam. Code Ann. § 54.02(a). Following a hearing, the juvenile court granted the motion and signed an order transferring Evan to the appropriate criminal court. Evan now appeals. See id. § 56.01(c)(1)(A) (permitting immediate appeal from an order transferring a juvenile for prosecution as an adult).

         II. APPLICABLE LAW

         The juvenile courts have exclusive original jurisdiction over all proceedings involving persons accused of committing a felony offense between their tenth and seventeenth birthdays. See Tex. Fam. Code. Ann. §§ 51.02(2), 51.03(a)(1), 51.04(a); Moon v. State, 451 S.W.3d 28, 37-38 (Tex. Crim. App. 2014). In certain situations, however, a juvenile court has discretion to waive that jurisdiction and transfer child felony offenders to the appropriate district court or criminal district court for criminal proceedings. See Tex. Fam. Code Ann. § 54.02(a); Moon, 451 S.W.3d at 38. As applicable to this case, a juvenile court may exercise that discretion if it finds that

(1) the child is alleged to have violated a penal law of the grade of felony;
(2) the child was:
(A) 14 years of age or older at the time [of the alleged offense], if the offense is a capital felony . . . or a felony of the first degree, and no adjudication hearing has been conducted concerning that offense; or
(B). . .; and
(3) after a full investigation and a hearing, [it] determines that there is probable cause to believe that the child before the court committed the offense alleged and that because of the seriousness of the offense alleged or the background of the child the welfare of the community requires criminal proceedings.

See Tex. Fam. Code Ann. § 54.02(a); Moon, 451 S.W.3d at 38.

In making these findings, the juvenile court must 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 the person;
(2) the sophistication and maturity of the child;
(3) the record and previous history of the child; and
(4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities ...

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