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In re K.W.

Court of Appeals of Texas, Second District, Fort Worth

January 9, 2020

In the Matter of K.W.

          On Appeal from the 415th District Court Parker County, Texas Trial Court No. JV19-0052

          Before Sudderth, C.J.; Gabriel and Bassel, JJ.

          MEMORANDUM OPINION

          Dabney Bassel, Justice.

         I. Introduction

         Appellant K.W., who was ten days shy of turning eighteen at the time of the hearing from which this appeal arises, contends that the juvenile court[1] abused its discretion by waiving its jurisdiction and ordering him transferred to "the appropriate criminal district court" to be prosecuted as an adult for four offenses-three counts of aggravated sexual assault of a child and one count of indecency with a child by contact-that he allegedly committed when he was fourteen and fifteen. See generally Tex. Fam. Code Ann. § 54.02. Under the statute governing waivers of jurisdiction and discretionary transfers, a juvenile court may transfer a child to the appropriate district court or criminal district court for criminal proceedings if the child was at least 14 years of age at the time he is alleged to have committed a first-degree felony or at least 15 years of age at the time he is alleged to have committed a second-degree felony. See id. § 54.02(a). In four points, Appellant challenges the legal and factual sufficiency of the evidence to support the findings that he was statutorily eligible by minimum age to be tried as an adult for each of his four offenses. Because the record contains legally and factually sufficient evidence from which the juvenile court could have calculated Appellant's age on the dates alleged for the four offenses and could have determined that Appellant met the statutory minimum age to be tried as an adult for all four offenses, we affirm the juvenile court's waiver and transfer order.

         II. Background[2]

         At the outset of the hearing on the State's petition for discretionary transfer, the State offered two exhibits: Appellant's psychological evaluation and the "Case History" prepared by assistant chief juvenile probation officer Scott Gieger. The psychological evaluation states that in June 2019, during the administration of a polygraph examination, Appellant "admitted to having sexually abused [a relative] since age 12, when she was age 9." The case history specifically states that Appellant was born in August 2001 and that the relative was born in January 2004. The case history also contains a notice of unsuccessful discharge from the Parker County Juvenile Offender Treatment Program. The discharge notice states that "[i]n preparation for a sexual history polygraph in April 2019, [Appellant] disclosed that he had sexually abused [a relative], who is approximately 22[ ]months younger . . . when she was aged nine to 12." The discharge notice also states that during the sexual-history polygraph in June 2019, Appellant stated that he had sexually abused a relative until she was 12 but that he had continued to expose himself to her after that in an attempt to get her to go along with sexual contact.

         One witness testified during the hearing. Tara Ross, who serves as the therapist for juveniles in the Parker County Juvenile Probation Department and who had prepared the notice of unsuccessful discharge that is summarized above, testified that Appellant was adjudicated in 2018 for "a sexting offense." As a component of his plea agreement in that case, Appellant was placed in the sex-offender treatment program. While Appellant was in sex-offender counseling, Ross learned about the circumstances surrounding the four offenses that Appellant is charged with in this case.[3] Appellant told Ross that he began sexually abusing a relative "when she was around 9 and ended around when she was 12." Ross believed that Appellant was approximately twenty-two months older than the relative. Based on that belief, Ross calculated that Appellant was "around 11 to 14" when he abused his relative. Ross testified that Appellant showed a level of sophistication and maturity commensurate with a "normal 17-year-old."

         At the conclusion of the hearing, the juvenile court granted the State's petition for discretionary transfer. The waiver and transfer order includes the following findings:

After careful consideration of all the evidence presented, the Court finds the following:
1. [Appellant] is alleged to have violated a penal law of the State of Texas of the grade of a first[-]degree felony, to-wit: Aggravated Sexual Assault of a Child, in violation of Section []22.021 of the Texas Penal Code, in that the said [Appellant], on or about May 1, 2016, in Parker County, Texas, did then and there intentionally and knowingly cause the penetration of the mouth of JaneDoe201902144, [4] a child who was then and there younger than 14 years of age, by the said [Appellant's] sexual organ.
2. [Appellant] is alleged to have violated a penal law of the State of Texas of the grade of a first[-]degree felony, to-wit: Aggravated Sexual Assault of a Child, in violation of Section []22.021 of the Texas Penal Code, in that the said [Appellant], on or about May 1, 2016, in Parker County, Texas, did then and there intentionally and knowingly cause the sexual organ of JaneDoe201902144, a child who was then and there younger than 14 years of age, to contact the sexual organ of the said [Appellant].
3. [Appellant] is alleged to have violated a penal law of the State of Texas of the grade of a first[-]degree felony, to-wit: Aggravated Sexual Assault of a Child, in violation of Section []22.021 of the Texas Penal Code, in that the said [Appellant], on or about September 15, 2016, in Parker County, Texas, did then and there intentionally and knowingly cause the anus of JaneDoe201902144, a child who was then and there younger than 14 years of age, to contact the sexual organ of the said [Appellant].
4. [Appellant] is alleged to have violated a penal law of the State of Texas of the grade of a second[-]degree felony, to-wit: Indecency with a Child by Sexual Contact, in violation of Section []21.11 of the Texas Penal Code, in that the said [Appellant], on or about December 1, 2016, in Parker County, Texas, did then and there, with the intent to arouse or gratify the sexual desire of the said [Appellant], engage in sexual contact with JaneDoe201902144, hereafter styled the complainant, by touching the genitals of the complainant, a child younger than 17 years of age.
5. [Appellant] is a male child who was born August [XX], [5]2001, and who is seventeen (17) years of age at the present time . . . .
6. [Appellant] was fourteen (14) years of age at the time of the alleged offense[s] on May 1, 2016. [Appellant] was fifteen (15) years of age at the time of the alleged offense on September 15, 2016. [Appellant] was fifteen (15) years of age at the time of the alleged offense on December 1, 2016. . . .
. . . .
13. The Court considered the sophistication and maturity of the child and finds that [Appellant] is sophisticated and mature under the Code.
14. The Court considered the record and previous history of the child and the prospects of adequate protection of the public and the likelihood of rehabilitation of the child by use of procedures, services[, ] and facilities currently available to the juvenile court and the Court finds that the procedures, services, and facilities currently available to the juvenile court will not likely rehabilitate [Appellant].
15. A full investigation and hearing of the child, his circumstances and the circumstances of the offense(s) was conducted by this Court[, ] and the Court finds that there is probable cause to believe that ...

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