Appeal from County Court at Law No. 2 Galveston County, Texas
Trial Court Cause Nos. 19-JV-0022, 19-JV-0023, and 19-JV-0102
consists of Justices Wise, Jewell, and Hassan.
State filed three petitions alleging appellant A.J.F., a
juvenile, engaged in delinquent conduct. The first petition
alleged he committed aggravated robbery of a Galveston
restaurant ("the Robbery Case"). The second and
third petitions concerned appellant's alleged possession
of methamphetamine ("the Drug Case")and harassment of
a public servant ("the Harassment Case"),
respectively (collectively "the Subsequent Cases").
State later filed a petition in the Robbery Case asking the
juvenile court to exercise its discretion to waive its
jurisdiction and transfer appellant to district court under
section 54.02(a) of the Family Code. The court granted the
State's request by order signed May 6, 2019 ("the
Discretionary Transfer Order"). Later that day, the
State filed petitions in the Subsequent Cases contending the
existence of the Discretionary Transfer Order required the
court to waive its jurisdiction and transfer appellant to
district court under section 54.02(m). The juvenile court
agreed and signed transfer orders on May 8, 2019 ("the
Mandatory Transfer Orders").
appealed each order. He contends the trial court (1) abused
its discretion by signing the Discretionary Transfer Order
because the court failed to properly apply the statutory
factors for transfer, and (2) erred as a matter of law by
signing the Mandatory Transfer Orders because section
54.02(m) does not apply in this case. We affirm each order.
Robbery Case and the Discretionary Transfer Order
Hearing on petition for discretionary waiver and
Armed robbery and investigation
African American young men walked into La Cazuela Cocina a
few days after Christmas in 2018. The first man walked into
the kitchen, where he quickly took the purse of 77-year-old
employee Efigenia Martinez. The second man, the shorter of
the two, stopped at the cashier's counter just inside the
door and pointed a small, silver handgun at 57-year-old
employee Amada Martinez. The first man walked out of the
kitchen; Efigenia followed quickly, carrying a large kitchen
knife. By this time, the second man was behind the counter
with Amada. Efigenia handed the knife to Amada, who waved it
at the second man. The second man shot Amada, then both men
ran out of the restaurant. Amada survived the shooting.
told the police she believed the two men who committed the
robbery had been in her restaurant earlier that day and
ordered burritos to go. She said one of them tried to steal a
dollar from the tip bowl but put it back when confronted.
children told the officers they saw two African American
males running from the restaurant before the police arrived
to investigate. A man said he saw appellant fire a .22
caliber, silver revolver the previous day and heard him
express a desire to "rob someone." That gun matched
the description of the weapon fired at Amada. Officers
discovered Efigenia's purse about two blocks from the
restaurant and near appellant's apartment complex. One of
her credit cards was missing.
police located appellant and another juvenile, Paul (both
African American), about thirty minutes after the robbery.
Paul's clothes appeared identical to those worn by the
first man on the video, but appellant's clothes did not
match those worn by the second man on the video. The officers
detained both Paul and appellant. During a consensual search,
officers found Efigenia's missing credit card in
Paul's pocket. Both young men were transported to a
magistrate informed appellant of his rights, Sergeant Derek
Gaspard of the Galveston Police Department interviewed
appellant. Appellant denied involvement in the robbery and
eventually told Sgt. Gaspard the robbery was committed by
Paul and a third person, Jason. In his own interview, Paul
admitted he robbed the restaurant with someone he referred to
as "A.J." When shown a photo array containing both
appellant's and Jason's photos, Paul identified Jason
as the person who committed the robbery with him. Based on
appellant's and Paul's statements, the police
released appellant and detained Jason.
mother consented to two searches of the apartment she shared
with appellant. In appellant's bedroom, officers found a
half-eaten burrito, shoes that matched the shoes of the
second man on the restaurant video, and a .22 caliber shell
casing. Clothing found in appellant's apartment matched
that worn by a person seen with Paul on surveillance video of
the apartment complex. That clothing also matched that worn
by the second man on the restaurant video.
the clothing and the timeline, Sgt. Gaspard was able to
determine it was appellant who robbed the restaurant with
Paul, not Jason. Paul subsequently changed his statement,
confirming appellant, not Jason, committed the robbery with
him. Jason was released, and appellant was again detained for
the robbery. The police searched him in conjunction with his
detention and discovered he had pills containing
methamphetamine in his possession. The State filed both the
Robbery Case and the Drug Case. While in a juvenile detention
facility for those cases, appellant allegedly spit on a
guard, which resulted in the Harassment Case.
Record and history
has extensive history with the juvenile justice department
(JJD). Before the robbery, appellant had been detained by the
JJD 16 times in just over four years. His first detention
came at age 11 for burglary of a vehicle. The other offenses
for which he was detained include more burglaries, theft,
criminal mischief, unlawful carrying of a weapon, and
numerous violations of the terms of his probation. The State
dismissed one of the charges and declined to prosecute seven
others. The remaining charges were disposed of in various
ways in line with JJD's 7-level progressive sanctions
system, ranging from judicial probation (sanction level 3) to
placement in a secure residential facility (sanction level
stayed in a level 5 facility for most of 2018. He did
"well," according to his probation officer. He
earned a green shirt, signifying leadership among his peers.
He helped staff members as well. Appellant successfully
completed the program and was discharged in October 2018.
later, he was detained for unlawful carrying of a weapon. The
court adjudicated him delinquent but, at the JJD's
recommendation, did not make a disposition, which means the
court did not impose punishment. A month after that,
appellant allegedly robbed La Cazuela Cocina.
three and a half months he was detained before the transfer
hearing in the Robbery Case, appellant was written up at
least 28 times for what the detention facility deemed
"serious incidents." Examples of those incidents
include: threatening to kill staff, threatening to assault
and assaulting staff, threatening to assault and assaulting
other juveniles, talking about shooting people, repeatedly
refusing to follow instructions, disrupting the program,
flooding his room, verbally abusing others, and using
profanity. While visiting appellant, his probation officer
heard him say, "I'm going to do my time; and when I
get to the streets, I will kill all of y'all, on my
mama." Appellant also reportedly said he did not care
what he did or what happened to him because he had
"nothing to lose."
probation officer testified appellant is indeed the
"rough and tough kid" he presents himself to be,
though she never felt personally threatened by him. She
recounted his outburst at a previous court appearance. During
testimony about one of appellant's threats, he had
exclaimed, "Bro, that's not a threat. That's a
promise." The probation officer also testified appellant
is 'very scared." She said he does well in
structured environments. Appellant's caseworker from
another program has had "no problems" with him. She
said he is pleasant, polite, and never disrespectful. Like
the probation officer, the caseworker never felt threatened
or intimidated by appellant. She testified he has
"bloomed" in the theater arts and creative
expression programs. In her opinion, appellant is scared of
to the certification report prepared by the probation
officer, appellant's overall risk to reoffend is high, as
is his criminal history score. His social history score is
moderate. The report does not explain the methodology used to
determine those scores. The report concludes with a
recommendation that appellant be transferred for adult
proceedings, because the JJD had provided him "ample
opportunities" and "all the necessary
services" to correct his behavior but had
"exhausted all efforts to help with [appellant's]
rehabilitation." The caseworker, by contrast, believed
appellant should continue in the JJD's sanctions system
instead of being punished as an adult.
Psychological and psychiatric evaluations
Jenine Boyd, Ph.D. evaluated appellant three times for the
JJD: when he was 12, almost 14, and almost 16. Each time, he
presented in a "respectful and cooperative manner."
He showed no overt signs of delusions, hallucinations, or a
thought disorder and denied any history of such. He had no
notable medical or mental health problems. Appellant was
prescribed medication for attention deficit hyperactivity
disorder (ADHD) but took it only sporadically. He offered
inconsistent accounts of substance abuse, originally denying
ever having used drugs, then admitting to smoking marijuana,
at times heavily. He said one of the marijuana cigarettes may
have been, unbeknownst to him, laced with benzodiazepines.
told Boyd he had good relationships with his parents and
siblings. His mother has been bedbound since appellant was
seven years old. The Department of Family and Protective
Services was involved earlier in appellant's life due to
inadequate supervision at home and excessive school absences.
He regularly skipped school and performed poorly in his
classes. Boyd's report notes appellant "follows
anti-social peers" and has a "negative peer
tested appellant to assess his intellectual functioning,
academic skills, and personality. He was shown to have an IQ
of roughly 85, which puts him in the 16th percentile for
intelligence. He was considerably below grade-level in
reading and math; his spelling skills were much better.
Appellant's responses on the behavioral test were
considered invalid due to inconsistency, most likely due to
his rushing through the questions. Previous responses on the
same test revealed his poor attitude toward school and sense
of inadequacy. They also showed him to be at risk in the
areas of inattention, hyperactivity, and anxiety.
[Appellant] is not adhering to the rules and social standards
in the community. His behavior and the behavior of his peers
he chooses for affiliation is dangerous. He has accessed all
levels of juvenile probation supervision within the community
to no avail.
. . .
[Appellant] is at least similar or more mature than
15-year-old adolescents. He has been adjudicated on other
juvenile delinquent charges. He was charged in 2018 with a
weapons charge that is not typical of other adolescents even
in the juvenile delinquent system. He does not meet the
criteria for an intellectual disability or naiveté
compared to other 15-year-old adolescents.
"no contraindications to admission to a secure facility
within the [juvenile] system."
Michael Fuller, M.D. evaluated appellant about a week after
Boyd's final evaluation. Fuller characterized appellant
as polite, appropriate, and cooperative throughout the
interview. Appellant's thought processes were
"logical, coherent, and goal directed and devoid of the
stigmata of persistent psychosis."
cognitive functioning was largely unremarkable. His
orientation, attention, concentration, memory, judgment,
abstract reasoning, and insight were all normal. He displayed
difficulty in some arithmetic tasks. Fuller said appellant
has "low average innate intelligence." Still,
Fuller found "no marked impairment overall in his
ability to make or use sound judgment."
concluded appellant has "probable conduct
disorder," ADHD, and features of post-traumatic stress
disorder due to being in a car accident at age 14 in which
his friend died. However, Fuller found no symptoms of
psychiatric illness. Despite admitting heavy marijuana usage
to Boyd, appellant told Fuller he had smoked it only once. He
also said he had ingested benzodiazepines recently.
offered several observations regarding appellant's
understanding of his legal situation: Appellant adequately
detailed the charges and allegations against him. He
understood he could be tried as an adult and sent to prison.
He showed awareness of the adversarial nature of criminal
proceedings; guilty and not guilty pleas; and the roles of
the judge, prosecutor, and defense attorney. Appellant knew
his lawyer's name and expressed willingness to work with
her and consider her advice. Fuller believed appellant could
testify rationally and conduct himself appropriately at
trial. In conclusion, Fuller wrote, appellant is reasonably
mature and "could be certified for trial as an adult
given his age and the serious nature of the criminal
Juvenile court's findings
Discretionary Transfer Order is five pages long and includes
the court's detailed findings regarding the offense,
appellant's sophistication and maturity, his record and
history, and the prospects of adequate protection of the
public and the likelihood of appellant's rehabilitation
through the juvenile system. The court also found probable
cause to believe appellant committed the offense alleged in
the Robbery Case. The findings are discussed in detail in
Waiver of juvenile jurisdiction
juvenile courts have exclusive, original jurisdiction over
cases involving what otherwise would be criminal conduct by
children 10 or older but younger than 17. Tex. Fam. Code Ann.
§§ 51.02(2)(a), 51.03(a)(1), 51.04(a). If a
juvenile court determines after an evidentiary hearing that
certain requirements are satisfied, it may waive its
jurisdiction and transfer a child to the district court for
criminal proceedings. Id. § 54.02(a), (c).
Transfer of a juvenile for prosecution as an adult
"should be regarded as the exception, not the
rule." Moon v. State, 451 S.W.3d 28, 36 (Tex.
Crim. App. 2014). Transfer proceedings are "critically
important," and any statutory mechanism for waiving
juvenile-court jurisdiction must at least "measure up to
the essentials of due process and fair treatment."
Id. (quoting Kent v. United States, 383
U.S. 541, 560-62 (1966)).
State bears the burden to persuade the juvenile court by a
preponderance of the evidence that "the welfare of the
community requires transfer of jurisdiction for criminal
proceedings, either because of the seriousness of the offense
or the background of the child (or both)."
Moon, at 40-41; accord Taylor v. State, 553
S.W.3d 94, 98 (Tex. App.-Houston [14th Dist] 2018, pet. ref
d) (op. on reh'g). The statutory requirements for waiver
of jurisdiction and transfer are:
(1) the child is alleged to have [committed a] felony;
(2) the child was:
(A) 14 years of age or older at the time he is alleged to
have committed the offense, if the offense is a capital
felony, an aggravated controlled substance felony, or a
felony of the first degree, and no adjudication ...