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In re R.S.

Court of Appeals of Texas, Eleventh District

June 20, 2019

IN THE MATTER OF R.S. IV, A JUVENILE

          On Appeal from the Juvenile Court Taylor County, Texas Trial Court Cause No. 5180-J

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [1]

          MEMORANDUM OPINION

          JIM R. WRIGHT, SENIOR CHIEF JUSTICE

         This is an accelerated appeal from an order in which the juvenile court waived its jurisdiction over R.S. IV (Appellant) and transferred the cause to a criminal district court. See Tex. Fam. Code Ann. § 54.02(j) (West 2014), § 56.01(c)(1)(A), (h), (h-1) (West Supp. 2018). In four issues on appeal, Appellant challenges the juvenile court's transfer order. We affirm.

         The juvenile court held a hearing on December 7, 2018, to address the State's request for discretionary transfer. Appellant was nineteen years old when the State filed its request for discretionary transfer, and he was twenty years old at the time of the hearing. The record from the hearing indicates that the child complainant made her first outcry in early 2018, around the time of her fourteenth birthday, at which time Appellant had already turned nineteen years old. Appellant allegedly committed the first-degree felony offense of aggravated sexual assault when he was fourteen to sixteen years old. See Tex. Penal Code Ann. § 22.021(a)(1), (a)(2)(B), (e) (West 2019) (aggravated sexual assault); see also Fam. § 54.02(j)(2)(B). The record reflects that the charges at issue had not been adjudicated at the time of the transfer hearing.

         The complainant's pastor testified that, while at a youth retreat in early 2018, the complainant stated that she had been sexually assaulted. The pastor then talked to the complainant, and she told him that she had been sexually assaulted for several years by Appellant. The complainant told her pastor that she had never told anyone else about the abuse. The pastor notified Waco police.

         Sergeant Jason Lundquist of the Waco Police Department testified about the child's outcry against Appellant. According to Sergeant Lundquist, the complainant indicated that Appellant, who is the complainant's cousin, had sexually assaulted her multiple times during a period of approximately three years, beginning when she was six or seven years old and Appellant was eleven or twelve years old. The allegations were that Appellant had touched the complainant's vagina and had also penetrated her vagina with his penis. The complainant indicated that the abuse stopped when she was "around" ten years old.

         Shawn Hicks, assistant chief of the Tye Police Department, testified that, when this case was referred to Tye, he reviewed the information that came from the Waco Police Department. According to Officer Hicks, the sexual assaults allegedly began when the complainant was about six years old and ended when she was about ten years old, at which time Appellant would have been approximately sixteen years old. Appellant was born in November 1998, and the complainant was born in early 2004. Thus, Appellant is more than five years older than the complainant. At the time of the alleged abuse, Appellant and his mother lived at the Tye address given by the complainant. Officer Hicks, whose children were friends with Appellant and Appellant's sister, had seen the complainant at that address in the past.

         Appellant presented one witness. That witness was a friend of Appellant's who testified that Appellant had moved to Merkel when he was twelve years old.

         Appellant specifically argues in his first issue that the evidence was legally and factually insufficient to prove by a preponderance of the evidence that he was fourteen years of age or older at the time of the alleged offense. In his second issue, Appellant challenges the legal and factual sufficiency of the evidence with respect to a finding under Section 54.02(f)(4), regarding the prospects of rehabilitation and protection of the public. In his third issue, Appellant asserts that the evidence is legally and factually insufficient to prove by a preponderance of the evidence that he committed the alleged offense. In his fourth issue, Appellant argues that the juvenile court abused its discretion by certifying Appellant as an adult and waiving its exclusive jurisdiction in this matter.

         In an appeal from an order in which a juvenile court waives its jurisdiction and enters a discretionary transfer order, an appellate court applies an abuse-of-discretion standard of review to the juvenile court's decision to transfer. In re S.G.R., 496 S.W.3d 235, 239 (Tex. App.-Houston [1st Dist.] 2016, no pet.) (citing Moon v. State, 451 S.W.3d 28, 47 (Tex. Crim. App. 2014)). The juvenile court's findings may be reviewed under the traditional civil standards for sufficiency of the evidence. Moon, 451 S.W.3d at 47; S.G.R., 496 S.W.3d at 239. To review the legal sufficiency of the evidence in support of a finding, we review the record-crediting evidence favorable to the finding and disregarding contrary evidence unless a reasonable factfinder could not reject the evidence. In re J.G., 495 S.W.3d 354, 370 (Tex. App.-Houston [1st Dist.] 2016, pet. denied); see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). To review the factual sufficiency of the evidence in support of a finding, we consider and weigh all the evidence in a neutral light and will set aside the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); J.G., 495 S.W.3d at 370.

         Here, the State moved for transfer pursuant to Section 54.02(j). Section 54.02(j) sets out the requirements for the discretionary transfer of a person who was a juvenile at the time of the alleged offense but has turned eighteen prior to being adjudicated as a juvenile. Section 54.02(j) provides in relevant part that a juvenile court may waive its jurisdiction and transfer a person to a district court for criminal proceedings if:

(1) the person is 18 years of age or ...

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