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In re A.J.F.

Court of Appeals of Texas, Fourteenth District

October 31, 2019

IN THE MATTER OF A.J.F., A CHILD

          On 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

          Panel consists of Justices Wise, Jewell, and Hassan.

          OPINION

          KEN WISE, JUSTICE

         The 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").[1] The second and third petitions concerned appellant's alleged possession of methamphetamine ("the Drug Case")[2]and harassment of a public servant ("the Harassment Case"), [3] respectively (collectively "the Subsequent Cases").

         The 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").

         Appellant 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.

         The Robbery Case and the Discretionary Transfer Order

         I. Hearing on petition for discretionary waiver and transfer

         A. Armed robbery and investigation

         Two 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.

         Amada 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.

         Some 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.

         The 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 juvenile facility.

         After 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.

         Appellant's 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.

         From 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.

         B. Record and history

         Appellant 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 5).

         Appellant 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.

         A month 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.

         In the 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."

         The 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 the unknown.

         According 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.

         C. Psychological and psychiatric evaluations

         Psychologist 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.

         Appellant 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 group."

         Boyd 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.

         She saw "no contraindications to admission to a secure facility within the [juvenile] system."

         Psychiatrist 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."

         Appellant's 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."

         Fuller 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.

         Fuller 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 charges."

         D. Juvenile court's findings

         The 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 section III.

         II. Waiver of juvenile jurisdiction

         Texas 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)).

         The 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 ...

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