in the Matter of K. T. S. v. State ( 2018 )

Opinion issued December 4, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00778-CV
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IN THE MATTER OF K.T.S.
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2017-02717J
MEMORANDUM OPINION
In May 2017, the State filed a petition against 18-year-old Appellant in
juvenile court, alleging that he engaged in delinquent conduct by committing
capital murder in June 2015 when he was 16 years old. Because Appellant was
over the age of 18 when charged, the State petitioned the juvenile court to waive its
jurisdiction and transfer the case to district court for criminal proceedings.
Following a certification hearing, the juvenile court signed an order granting the
State’s motion to transfer.
Appellant brings this accelerated appeal to challenge the juvenile court’s
order.1 In one issue, Appellant contends that the juvenile court abused its
discretion by waiving its jurisdiction and transferring him to criminal court because
“the State failed to prove by a preponderance of the evidence that it was beyond
[its] control . . . to proceed to certification before Appellant’s 18th birthday.” He
also generally contends that the State did not exercise due diligence in filing the
petition in juvenile court before Appellant turned 18.
Because we conclude that the juvenile court did not abuse its discretion, we
affirm the order.
Background
On June 17, 2015, A.V. and his friend, Aaron Wilson, went to a Houston
apartment complex to sell seven grams of marijuana to someone they knew as
“Jay.” A.V. had sold marijuana to Jay two or three other times in face-to-face
transactions. To set up the drug deal, A.V. communicated with Jay on the
telephone. Jay selected the apartment complex as the location for the transaction.
Entrance into the complex required a gate code, which Jay provided to A.V.
over the telephone. Using the code, A.V. and Wilson entered the apartment
1
See TEX. FAM. CODE § 56.01(c)(1)(A).
2
complex. Wilson was driving and A.V. was in the passenger’s seat. Jay instructed
A.V. to go to the back of the apartment complex and wait for him near a dumpster.
A.V. and Wilson followed Jay’s instructions, parking next to the dumpster and
waiting in the car.
A.V. then saw Jay, whom he recognized from past drug transactions,
walking toward the car. Wilson was sitting on the driver’s side sending messages
on his phone to his girlfriend. When Jay got to the car, A.V. showed him the seven
grams of marijuana. The price of the marijuana was $90, and Jay asked A.V. if he
had change for a $100 bill. As A.V. looked to see if he had change, Jay grabbed
the marijuana, and two men came out from behind the dumpster; one of them had a
gun. A.V. then realized that it was a setup for a robbery. Wilson pressed the car’s
accelerator to get away. As the car sped away, A.V. heard a gunshot, and the car
crashed. Wilson had been hit in the head by a bullet and died from the injury.
Fearing for his life, A.V. ran from the scene. He then realized that the police
would soon arrive, and he returned. A.V. waited at the scene and told the police
what had happened. A.V. provided police with Jay’s cell phone number, which
had an 832 area code. A.V. also provided police with the gate code Jay had given
him.
Detective Sergeant H. Garcia and Detective Sergeant S. Murdock of the
Houston Police Department’s Homicide Division were assigned to investigate the
3
case. They researched the name “Jay” and developed a suspect, J.G. The day after
Wilson was killed, the detectives showed A.V. a photo spread with J.G.’s picture
in it. A.V. said that the person he knew as Jay was not in the pictures.
The detectives learned that the gate code given to A.V. by Jay was the code
used by residents who live in Building 14. They also learned that the 832-phone
number used by Jay belonged to a woman whose brother, C.H., lived in Building
14.
The detectives spoke with C.H. He permitted police to enter the 832 number
into his phone. The phone showed that the contact associated with the number was
Appellant, who is C.H.’s brother. C.H. told police that Appellant had not been to
his apartment on the night of the shooting.
With his mother present, 16-year-old Appellant voluntarily gave a statement
to the police. He admitted that he was at his brother’s apartment complex when
the shooting occurred. He said that he had played basketball with someone named
Jay that day. Appellant claimed that Jay had asked him for a ride to the apartment
complex where Appellant’s brother lives.
Appellant claimed that Jay had borrowed his cell phone for about two hours
and used it to text. Appellant also said that Jay had then erased all the text
messages from the phone. Appellant said that, when they arrived at the complex,
Jay already knew the gate code used for Building 14. Appellant told the police that
4
he had dropped Jay off inside the apartment complex and, then, a short time later,
he heard gunshots. Appellant said he went to his brother’s apartment and came out
to see the police and fire department when they arrived. Appellant denied that he
was “Jay” and told the detectives that he had nothing to do with the shooting.
Appellant’s mother signed a consent form, allowing police to search
Appellant’s cell phone. The search revealed only two text messages between
Appellant’s phone and A.V.’s phone. The subject matter of the texts appeared to
relate to a drug transaction.
After Appellant spoke with police, Appellant’s brother, C.H., admitted that
Appellant had been at his apartment on the night of the shooting, saying that he
had forgotten that Appellant was there. Detective Murdock also spoke with C.H.’s
roommate. The roommate recalled that he had heard gunshots, tires squealing, and
a car crash. Then, Appellant and his cousin had come running up the stairs to the
apartment. They were upset and wanted to get inside the apartment. The
roommate told Detective Murdock that Appellant had said that “somebody had just
been shot.”
To identify Jay, Detective Murdock showed A.V. another photo spread on
July 1, 2015. The photo spread included Appellant’s picture along with pictures of
five other similar-looking males. Appellant’s photo was in the first position.
Detective Murdock noticed that A.V. stared at Appellant’s picture for over one
5
minute. However, A.V. did not choose Appellant’s picture; instead, A.V. said that
the person in the second photo “kind of” looked like Jay and indicated that the
person in the fourth photo “really look[ed]” like Jay. Detective Murdock later
testified that he could not question A.V. about his negative identification of
Appellant, even though the detective believed that A.V. recognized Appellant,
because that could taint the identification process.
The police also obtained a warrant to search the phone records for
Appellant’s and A.V.’s cell phones. The police received the phone records on
September 1, 2015. The records showed that from 11:10 p.m. until 11:53 p.m.
there were 32 contacts between the phones, including five phone calls and 27 text
messages.2
The police learned of no additional evidence in 2015 or 2016. Appellant
turned 18 on November 9, 2016.
On January 5, 2017, Wilson’s mother, C. Baird, contacted Detective Garcia
to inform him that she had spoken with A.V. A.V. told her that he had recognized
the person he knew as Jay in a photo spread shown to him by police. He said that
he had not identified Jay in the photo spread because he feared retaliation. Baird
2
Detective Murdock testified at the certification hearing that the contacts occurred
over an hour-and-one-half period but the phone records, admitted into evidence,
show that the first call was at “23:10” and the last was at “23:53.”
6
said that she had implored A.V. to be honest with the police about the
identification, and he had agreed to be truthful about Jay’s identity.
Between January and May 2017, Detective Murdock attempted to contact
A.V. numerous times and left messages for him. On May 8, 2017, the detectives
met with A.V. and showed him the photo spread with Appellant’s picture and five
others. A.V. looked at the photos and immediately identified Appellant as being
the person he knew as Jay. He circled Appellant’s photo and initialed it. A.V. told
the detectives that he had not identified Appellant when shown the photo spread in
2015 because he was scared and feared retaliation. He said, “I didn’t want to get
shot like my friend.”
Once A.V. positively identified Appellant as Jay, the detectives presented
the facts to the juvenile division chief of the district attorney’s office. On May 15,
2017, the juvenile division chief filed a petition in Harris County juvenile court,
alleging that Appellant, at age 16, engaged in delinquent conduct by committing
capital murder in June 2015. The State requested the juvenile court to “consider
discretionary transfer to Criminal Court, and [to] waive[] its exclusive original
jurisdiction and transfer [Appellant] to the appropriate . . . Criminal District Court
for criminal proceedings.”
Appellant moved to dismiss the State’s petition on the basis that the State
had not used due diligence in proceeding against Appellant in juvenile court before
7
he turned 18. The juvenile court conducted an evidentiary hearing in January 2018
to consider (1) Appellant’s motion to dismiss and (2) concomitantly the State’s
request that the juvenile court waive its jurisdiction and transfer Appellant to
criminal district court for prosecution.
At the hearing, the State offered the testimony of Detectives Garcia and
Murdock. They testified about their investigation of Wilson’s murder to show the
State had exercised due diligence in the manner they handled the investigation
before Appellant turned 18. Their testimony described the steps taken in the
investigation, what information the detectives learned during the investigation, and
when they learned it.
The detectives’ testimony indicated that, while the circumstantial evidence
discovered before Appellant turned 18 supported their belief that Appellant was
Jay, A.V.’s negative identification of Appellant in July 2015 undermined their case
against Appellant. A.V. told them that he knew Jay by sight because he had
engaged in previous face-to-face drug transactions with him. A.V.’s negative
identification of Appellant served to support Appellant’s story that he had loaned
his phone to someone named Jay on the night of the shooting. The detectives
indicated that, under the circumstances of this case, they did not have probable
cause to proceed against Appellant because of A.V.’s negative identification of
Appellant as Jay.
8
When asked “[h]ow harmful is it to a case of circumstantial evidence when
you have an eyewitness that’s not willing to identify a suspect,” Detective
Murdoch answered, “Kills it.” Detective Garcia testified, “Once the surviving
complainant [A.V.] said, ‘No, I don’t recognize him,’ it put our investigation in
jeopardy. If he would’ve recognized him as Jay, then I would’ve presented the
case to the ADA.” He testified that the case was not presented to the district
attorney’s office to pursue charges against Appellant until A.V. had positively
identified Appellant as Jay.
To show that the State had not acted with due diligence in proceeding
against Appellant before he turned 18, Appellant offered the testimony of D.
Webber, a private investigator and retired police officer. Webber testified that,
before retirement, he had worked 11 years for the Cut-N-Shoot Police Department
as a patrol officer and had worked 20 years for the Houston Police Department as a
patrol officer, an officer in the narcotics unit, and “for a brief time worked with the
Vice Division on several projects.” To prepare for testifying, Webber said that he
reviewed the reports regarding the police’s investigation of the case.
Webber suggested that, besides the steps taken in the investigation, the
homicide detectives should have taken additional steps to link Appellant to the
crime scene. He indicated that the police should have tested the outside of
Wilson’s car for fingerprints. Webber said, “In my experience with a hand-to-hand
9
drug transaction from someone outside the car to inside the car, 99 percent of the
time they lean into the car or they touch the car in some way.” When asked by
defense counsel whether the homicide detectives should have checked Appellant’s
clothes for gunshot residue, Webber stated, “[I]n my opinion it would have been
something that would have been reasonable to check into.”
Defense counsel elicited testimony from Webber about the circumstantial
evidence discovered by the police, before Appellant turned 18, that linked
Appellant to the murder. According to Webber, this included evidence that (1)
Appellant and another person were seen immediately after the shooting with a gun
and heard to say “someone was shot”;3 (2) cell phone records showing that A.V.
communicated with a cell phone used by Appellant on the night of the murder; (3)
the gate code given by Jay to A.V. was the code used by residents of Building 14
where Appellant’s brother lived; and (4) A.V. stared at Appellant’s photo in the
2015 photo spread before claiming that Jay was not there. The defense asked
Webber, “Based on your review of this case do you believe in your opinion that the
officers should have taken the case to the Harris County District Attorneys’ Office
Juvenile Division in September of 2015 after they got the phone records?” Webber
3
Other than the testimony of Webber, who did not have first-hand knowledge of the
investigation, no other evidence was presented indicating that, after the shooting,
Appellant and the person with him were seen with a gun. Detective Murdock
testified that Appellant and his cousin were seen after the shooting in the
apartment complex and appeared upset, but he did not testify that Appellant or his
cousin had a gun.
10
responded affirmatively. However, Webber also testified that he had no
experience with long-term investigations, had never met with a prosecutor to
discuss probable cause in a murder case, and had “never investigated a homicide
case.”
The juvenile court denied Appellant’s motion to dismiss the State’s petition.
In support of the denial, the trial court filed findings of fact and conclusions of law.
Among the findings, the juvenile court found Detectives Garcia and Murdock to be
“credible and reliable” witnesses. The court detailed the steps the detectives had
taken in investigating the case and ultimately pursuing charges against Appellant.
In its last finding of fact, the juvenile court found: “The State sought discretionary
transfer in a timely fashion as soon as probable cause existed to believe [Appellant]
committed the above capital murder, but that such probable cause did not develop
until after [Appellant] turned 18 with the new evidence provided by [A.V.].”
Based on its findings, the juvenile court concluded:
2. Because probable cause did not exist in this case before
[Appellant] turned 18 years of age on November 9, 2016; and,
because any indications or suspicion that [Appellant] committed the
capital murder which police knew existed before that [Appellant]
turned 18 was defeated by [A.V.’s] negative identification of
[Appellant] in the photo spread, this Court concludes that the State did
not possess probable cause to charge [Appellant] by petition with this
capital murder any time before May 8, 2017, when police learned in
newly developed evidence that [Appellant] was in fact the person
[A.V.] knew as “Jay.” [citation omitted.]
11
3. Because the investigation proceeded in a timely fashion before
[Appellant’s] 18th birthday; and because, but for the fact that probable
cause did not develop until May 8, 2017 (a date after [Appellant’s]
18th birthday), the court finds by a preponderance of the evidence that
the State exercised due diligence to pursue the certification petition
under Tex. Fam. Code Ann. §54.02(j), but that for a reason beyond
the control of the State, it was not practicable to proceed in juvenile
court by petition before [Appellant’s] 18th birthday.
4. The Court concludes that until police obtained the new
evidence after [Appellant’s] 18th birthday that resulted from [A.V.’s]
positive identification of [Appellant] as the person he knew as Jay”
and as the person that met with [A.V.] and the complainant on the
night of the shooting, the police had no direct evidence that connected
[Appellant] as the person who set up the drug deal and met in the
parking lot with [A.V.] or as the person who set up the robbery.
On March 20, 2018, the juvenile court conducted a certification hearing on
the State’s request to waive its jurisdiction and to transfer Appellant to criminal
district court. The State reoffered all the evidence from the January 2018 hearing
on Appellant’s motion to dismiss the petition, and the juvenile court took judicial
notice of its file, including its findings of fact and conclusions of law supporting its
denial of Appellant’s motion to dismiss.
On March 27, 2018, the juvenile court signed an order waiving jurisdiction
and transferring Appellant to criminal district court for prosecution. In its order,
the juvenile court made findings to support of waiver and transfer. See TEX. FAM.
CODE § 54.02(h). Relevant to the issue raised on appeal, the court found as
follows:
12
The Court finds the following facts support waiver of exclusive
original jurisdiction and transfer of [Appellant] to criminal district
court for criminal proceedings:
....
(5) That by a preponderance of the evidence after due diligence of the
State it was not practicable to proceed in juvenile court before the
18th birthday of [Appellant] because the State did not have probable
cause to proceed on the capital murder charge in 2015 or 2016.
Instead, new evidence developed after [Appellant]’s 18th birthday.
The following facts demonstrate when and how the new evidence
developed that led to probable cause:
a. The Court incorporates by reference the Findings of Fact and
Conclusions of Law issued on March 19, 2018 in response to
[Appellant]’s Motion to Dismiss as factual and legal support for
this Court’s decision to waive jurisdiction and transfer the matter
to criminal district court. . . .
b. The Court finds that after due diligence of the State it was not
practicable to proceed in juvenile court before [Appellant’s] 18th
birthday because:
i. On July 1, 2015, [Detective] Murdock showed [A.V.] a photo
spread of [Appellant] and five other males with similar physical
characteristics. [Detective] Murdock testified that [Appellant]
was located in position number one of the photo spread shown
to [A.V.]. [Detective] Murdock stated that [A.V.] stared at
picture number 1 for a minute and then stated it could be
number 2 or number 4. [A.V.] made a negative identification of
[Appellant].
ii. [Detective] Murdock testified that it would have been
impermissibly suggestive to challenge [A.V.] on the fact that he
did not make an identification on the first picture, or to suggest
that picture number one was a person present at the complex
that night, even though [Detective] Murdock believed [A.V.]
recognized the person in position number one.
13
iii. [Detective] Murdock could not suggest to a witness which
photograph he should have identified without tainting any
further investigation.
iv. [A.V.] was the only eyewitness to the capital murder, and the
only direct evidence of Jay’s involvement and of Jay’s identity.
v. [A.V.’s] identification of the three men involved in the capital
murder was the only evidence known or available to police that
could have refuted [Appellant’s] claims to being present at the
complex, but uninvolved in the shooting.
vi. The cell phone records alone linking [Appellant] and [A.V.] to
communications near the time of the murder did not overcome
[Appellant]’s statement to police. [Appellant] told police that
he allowed Jay [to] use his phone. [A.V.] told police he had
met Jay multiple times and he would recognize Jay if he saw
him again. [A.V.]’s negative identification of [Appellant]’s
photograph as the person he recognized and knew as Jay
confirmed [Appellant]’s statement that someone else was Jay,
not [Appellant].
vii. [Detective] Murdock testified that after September 1, 2015, the
case remained open pending new information because the
negative identification from witness [A.V.] defeated any
circumstantial evidence that might have shown contact between
[Appellant] and the complainant near the time of the
complainant’s death.
viii. On November 9, 2016, [Appellant] turned eighteen years old.
ix. Probable cause linking [Appellant] to the murder did not
develop until police learned that [A.V.] had lied to police
during the photospread identification based on his fears of
retaliation.
x. On January 5, 2017, police first learned from [C.] Baird, the
complainant’s mother, about [A.V.’s] deliberate
misidentification of Jay in the photo spread.
14
xi. During the conversation with Mrs. Baird, [A.V.] told her that he
was now willing to be honest with investigators regarding Jay’s
identity.
xii. On May 8, 2017, [Detective] Murdock met with [A.V.] and
again presented him with the photo spread of [Appellant] and
five other males with similar physical characteristics originally
shown to [A.V.] on July 1, 2015. Neither [Detective] Murdock
nor [Detective] Garcia had told [A.V.] that he had or had not
picked the correct person from the photospread in the past.
[Detective] Murdock stated that [A.V.] looked at the photo
spread and immediately identified [Appellant] in position
number one as Jay.
xiii. [A.V.] admitted to [Detective] Murdock that he did not
originally identify [Appellant] in 2015 because he felt scared.
xiv. Probable cause did not exist in this case before [Appellant]
turned 18 years of age on November 9, 2016 because any
indications or suspicion that [Appellant] participated in the
capital murder, about which police knew before that
[Appellant] turned 18, was defeated by [A.V.’s] negative
identification of [Appellant] in the photo spread.
xv. This Court finds that the State did not possess probable cause to
charge [Appellant] by petition with this capital murder any time
before May 8, 2017, when police learned in newly developed
evidence that [Appellant] was in fact the person [A.V.] knew as
Jay, present during the murder, who lured [A.V.] to bring drugs
to the scene, and who then took those drugs from him after one
of his co-actors displayed a gun.
The juvenile court concluded its order as follows:
Based on the above [findings], as well as the totality of the evidence
presented in the clerk’s record, at the hearing, in the written reports,
studies, and investigations, this Court ORDERS and CERTIFIES that
its jurisdiction sitting as a Juvenile Court, be WAIVED, and that
[Appellant] be transferred to the Criminal District Court of Harris
15
County, Texas, for criminal proceedings to be dealt with as an adult in
accordance with the Code of Criminal Procedure.
This interlocutory appeal followed.4 See TEX. FAM. CODE § 56.01(c)(1)(A).
Order Waiving Jurisdiction and Transferring Case
In his sole issue, Appellant questions the sufficiency of the evidence to
support the juvenile court’s finding that it was beyond the State’s control to
proceed to certification before his 18th birthday and its finding that the State
exercised due diligence in pursuing charges against him before he turned 18.
A. Applicable Legal Principles
A juvenile court has exclusive original jurisdiction over all proceedings
involving a person who has engaged in delinquent conduct based on acts
committed before age 17. See TEX. FAM. CODE §§ 51.02(2)(A), 51.04(a). Family
Code Section 54.02 governs the waiver of a juvenile court’s exclusive original
jurisdiction and transfer to criminal district court. See id. § 54.02.
Here, the State did not initiate proceedings in juvenile court against
Appellant until after his 18th birthday. Thus, the juvenile court had two options
under its limited jurisdiction: it could dismiss the case or transfer it to criminal
district court. See Moore v. State, 532 S.W.3d 400, 405 (Tex. Crim. App. 2017)
4
Appellant filed his notice of appeal on March 27, 2018; however, the Clerk of this
Court did not receive the notice of appeal from the district clerk’s office until
August 28, 2018, five months after the notice of appeal was filed.
16
(citing In re N.J.A., 997 S.W.2d 554, 556 (Tex. 1999)).5 As applicable here, the
State had to prove, by a preponderance of the evidence, the following criteria listed
in Family Code Section 54.02(j) to be entitled to transfer:
(j) The juvenile court may waive its exclusive original jurisdiction and
transfer a person to the appropriate district court or criminal district
court for criminal proceedings if:
(1) the person is 18 years of age or older;
(2) the person was:
(A) 10 years of age or older and under 17 years of age at
the time the person is alleged to have committed a capital
felony or an offense under Section 19.02, Penal Code;
....
(3) no adjudication concerning the alleged offense has been
made or no adjudication hearing concerning the offense has
been conducted;
(4) the juvenile court finds from a preponderance of the
evidence that:
(A) for a reason beyond the control of the state it was not
practicable to proceed in juvenile court before the 18th
birthday of the person; or
5
In Moore, the Court of Criminal Appeals noted an exception to the rule that, after
an accused reaches the age of 18, a juvenile court must dismiss or transfer the
case. That exception is found in Family Code Section 51.0412, which applies to
incomplete proceedings. Moore v. State, 532 S.W.3d 400, 404 n.4 (Tex. Crim.
App. 2017) (citing TEX. FAM. CODE § 51.0412). This case does not involve an
incomplete proceeding.
17
(B) after due diligence of the state it was not practicable to
proceed in juvenile court before the 18th birthday of the
person because:
(i) the state did not have probable cause to proceed in
juvenile court and new evidence has been found since the
18th birthday of the person; [and]
....
(5) the juvenile court determines that there is probable
cause to believe that the child before the court committed
the offense alleged.
TEX. FAM. CODE § 54.02(j); see also Moon v. State, 451 S.W.3d 28, 45 (Tex. Crim.
App. 2014) (“[T]he burden is on the State to produce evidence that persuades the
juvenile court, by a preponderance of the evidence, that waiver of its exclusive
jurisdiction is appropriate.”).
The dispute in this case centers on whether the State showed by a
preponderance of the evidence that either (1) for a reason beyond the control of the
State, it was not practicable to proceed in juvenile court before Appellant’s 18th
birthday, or (2) after due diligence of the State, it was not practicable to proceed
because the State did not have probable cause, and new evidence was found after
Appellant’s 18th birthday. See TEX. FAM. CODE § 54.02(j)(4)(A), (B)(i). The
juvenile court made findings with respect to each of these two criteria. The court
found, for reasons beyond the State’s control, it was not practicable for the State to
proceed in juvenile court before Appellant’s 18th birthday. The juvenile court also
18
found the State had exercised due diligence to pursue the certification petition, but
it had not been practicable to proceed in juvenile court because the State did not
have probable cause, and new evidence was found after Appellant’s 18th birthday,
namely, A.V.’s positive identification of Appellant as Jay. On appeal, Appellant
challenges the sufficiency of the evidence regarding certain elements of these
findings.
We review a challenge to the sufficiency of the evidence supporting a
juvenile court’s findings of fact regarding a waiver and transfer determination
under traditional evidentiary-sufficiency principles. Moon, 451 S.W.3d at 47; In re
H.Y., 512 S.W.3d 467, 478–79 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
To determine whether there is legally sufficient evidence to support the finding
under review, we must consider evidence favorable to the finding if a reasonable
factfinder could and disregard evidence contrary to the finding unless a reasonable
factfinder could not. H.Y., 512 S.W.3d at 479. If more than a scintilla of evidence
supports the finding, then there is legally sufficient evidence to support it, and a
legal-sufficiency challenge fails. Id. Under a factual sufficiency challenge, we
consider all the evidence presented to determine if the court’s finding is so against
the great weight and preponderance of the evidence as to be clearly wrong and
unjust. Id.
19
After conducting a “traditional sufficiency of the evidence review” of the
juvenile court’s specific findings, the appellate court “should then review the
juvenile court’s ultimate waiver decision under an abuse of discretion standard.”
Moon, 451 S.W.3d at 47. In applying the abuse-of-discretion standard, we conduct
our own analysis of the evidence, and determine whether the juvenile court acted
without reference to the guiding rules or principles such that its decision to transfer
the case was “essentially arbitrary, given the evidence upon which it was based.”
Id.
B. Analysis
1. Reason Beyond the Control of the State
With foregoing standards in mind, we turn to Appellant’s claim that the
evidence, admitted during the hearing on the State’s request to transfer his case,
“did not support” the juvenile court’s finding that “for a reason beyond the control
of the State, it was not practicable to proceed in juvenile court by petition before
[Appellant’s] 18th birthday.” See TEX. FAM. CODE § 54.02(j)(4)(A). In his brief,
Appellant focuses on the phrase “beyond the control of the State,” asserting that
the evidence did not show that it was beyond the State’s control to proceed in the
juvenile court before Appellant turned 18.
In making his argument, Appellant relies on Moore v. State, claiming that
the facts there are like those presented here. 446 S.W.3d 47 (Tex. App.—Houston
20
[1st Dist.] 2014), aff’d, 532 S.W.3d 400, 402 (Tex. Crim. App. 2017). In that case,
Moore committed sexual assault when he was 16 years old. Id. at 49. The
complainant identified Moore, and the police began their investigation when
Moore was still 16. Id. Almost two years later, the police forwarded Moore’s case
to the district attorney’s office, believing Moore to be only 17 years old. Id.
Moore, however, had turned 18 eleven days earlier. Id. In delaying forwarding the
charges, the police had relied on a faulty internal police report listing an incorrect
birthdate for Moore, making it appear he was one year younger than his actual age.
Id. Other records in the police’s file, however, had listed Moore’s correct
birthdate. Id. The detective handling the case also testified that she had a heavy
caseload at the time. Id.
Moore was taken into custody, and one year later, the State filed a petition
for a discretionary transfer of the case from juvenile court to a criminal district
court. Id. The juvenile court transferred the case, concluding that, for a reason
beyond the State’s control, it was not practicable to proceed in juvenile court
before Moore’s 18th birthday. Id.
On appeal, the State asserted that an investigative delay, stemming from the
detective’s large caseload and a mistake as to Moore’s age were reasons beyond its
control. Id. at 51. We noted that the State had conceded, however, “that the
offense was promptly reported and that Moore had been identified as the
21
perpetrator within days after the offense was committed while he was still a
juvenile and well short of his seventeenth birthday.” Id. We further noted that
“[t]he correct birthdate was evident in other police records,” and “[t]he State did
not trace its error in the internal offense report to any outside source.” Id. Instead,
the record demonstrated “that it was the State’s clerical error, coupled with its
lengthy delay—unaided by any outside event—which caused the case to fall
outside the juvenile court’s jurisdiction.” Id. We held that the juvenile court had
erred in transferring the case to criminal district court because the police’s heavy
caseload and their mistake as to Moore’s age were not reasons beyond the State’s
control. See id. at 52; see also TEX. FAM. CODE § 54.02(j)(4)(A).
In his brief, Appellant contends, “Just as in Moore, law enforcement’s
failure to present the case it had to the District Attorney’s office regarding the
appellant’s age was something that was ‘knowable.’” Appellant’s age was a pre-
known fact that could have been discovered with a simple visit with the Juvenile
Division Chief.”
We agree with the State that the facts of this case are not like those in
Moore. Here, unlike in Moore, the State never disputed that it was aware of
Appellant’s correct age. A misunderstanding regarding Appellant’s age was not
the reason proffered by the State for not proceeding in juvenile court until after
Appellant turned 18. Instead, the State offered evidence demonstrating that the
22
reason it did not proceed in juvenile court before Appellant turned 18 was because
the sole eyewitness, A.V., who said that he knew Jay by sight, made a negative
identification of Appellant until after Appellant turned 18. This also stands in
contrast to the facts in Moore because, there, the complainant positively identified
Moore as the perpetrator soon after the offense while he was still 16, and Moore’s
identity as the perpetrator, unlike here, was not the subject of a continuing
investigation. See Moore, 446 S.W.3d at 49.
In support of his position, Appellant’s brief details evidence showing that
the police knew, before Appellant turned 18, that his cell phone was used to
communicate with A.V. on the night of the shooting to set up the drug transaction.
The police also learned that Appellant was seen immediately after the shooting at
his brother’s apartment. He appeared upset and said that someone had just been
shot. And the police knew that the gate code given to A.V. by Jay was the code
used by residents in Building 14 where Appellant’s brother lived. However,
Appellant told police that he had given Jay a ride to the apartment complex. He
said that Jay had borrowed his cell phone, and Jay knew the gate code. A.V.’s
negative identification of Appellant as Jay bolstered Appellant’s story.
In its findings of fact, the juvenile court not only found Detectives Garcia
and Murdock to be credible witnesses, it also made the following unchallenged
findings:
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iv. [A.V.] was the only eyewitness to the capital murder, and the
only direct evidence of Jay’s involvement and of Jay’s identity.
v. [A.V.’s] identification of the three men involved in the capital
murder was the only evidence known or available to police that
could have refuted [Appellant’s] claims to being present at the
complex, but uninvolved in the shooting.
vi. The cell phone records alone linking [Appellant] and [A.V.] to
communications near the time of the murder did not overcome
[Appellant]’s statement to police. [Appellant] told police that
he allowed Jay [to] use his phone. [A.V.] told police he had
met Jay multiple times and he would recognize Jay if he saw
him again. [A.V.]’s negative identification of [Appellant]’s
photograph as the person he recognized and knew as Jay
confirmed [Appellant]’s statement that someone else was Jay,
not [Appellant].
vii. [Detective] Murdock testified that after September 1, 2015, the
case remained open pending new information because the
negative identification from witness [A.V.] defeated any
circumstantial evidence that might have shown contact between
[Appellant] and the complainant near the time of the
complainant’s death.
The evidence showed that A.V. initially lied about Appellant’s identity out
of fear that he would be killed like Wilson. And the evidence showed that A.V.’s
dishonesty was an outside force beyond the control of the police. Appellant
suggests that the police should have questioned A.V. about his negative
identification because they suspected that A.V. recognized Appellant when he first
viewed that photo spread and negatively identified Appellant. However, Detective
Murdock testified that it would have been inappropriate for him to question A.V.
24
about the identification because it would have been suggestive and could have
tainted the process.
Appellant further cites evidence indicating that the police should have tested
the car driven by Wilson for Appellant’s fingerprints. However, Detective
Murdock testified that the police had no information that Jay touched the car.
Detective Murdock also testified, “[F]ingerprints on the outside of a car don’t
mean a whole lot. Anybody can walk by a car and touch it.”
Appellant also suggests that the police should have tested Appellant’s
clothes for gunshot residue. However, the evidence showed that Jay was not the
shooter.
We conclude that the evidence offered by the State was more than a scintilla
of evidence supporting the trial court’s finding that, for a reason beyond the control
of the State, it was not practicable to proceed in juvenile court by petition before
Appellant’s 18th birthday. See TEX. FAM. CODE § 54.02(j)(4)(A). We also
conclude that the finding was not against the great weight of the evidence. Thus,
the evidence was legally and factually sufficient to support the finding.
2. Due Diligence of the State
Without tying it to a specific finding of the juvenile court, Appellant also
generally alludes that the State did not exercise due diligence in filing the transfer
petition in juvenile court before he turned 18. In support of its transfer order, the
25
trial court found that, “after due diligence of the State it was not practicable to
proceed in juvenile court before the 18th birthday of [Appellant] because the State
did not have probable cause to proceed on the capital murder charge in 2015 or
2016. Instead, new evidence developed after [Appellant]’s 18th birthday.”
“Due diligence requires the State to ‘move ahead’ or ‘reasonably explain
delays.’” In re B.R.H., 426 S.W.3d 163, 168 (Tex. App.—Houston [1st Dist.]
2012, orig. proceeding) (quoting In re N.M.P., 969 S.W.2d 95, 100 (Tex. App.—
Amarillo 1998, no pet.)). Diligence is usually a fact question that the trial court
determines considering the circumstances of each case. Id.
Here, the evidence showed that the police began immediately investigating
Wilson’s murder by interviewing witnesses, including A.V., Appellant,
Appellant’s brother, and Appellant’s brother’s roommate. The police also soon
determined who owned the phone on which Jay had communicated with A.V.
About two weeks after the murder, A.V. viewed the photospread containing
Appellant’s photograph. However, A.V. negatively identified Appellant as Jay
because he feared retaliation. The police obtained a search warrant for A.V.’s and
Appellant’s cell phone data, but the phone records confirmed only that A.V.’s and
Appellant’s cell phones communicated before the shooting. The phone records did
not necessarily refute Appellant’s claim that he had loaned his phone to someone
named Jay, a claim bolstered by A.V.’s negative identification of Appellant. The
26
evidence showed that police did not obtain any new leads until A.V., convinced by
Wilson’s mother to be honest, made a positive identification of Appellant after he
turned 18.
In sum, the testimony of Detectives Garcia and Murdock addressed (1) the
State’s efforts to investigate Wilson’s murder, (2) what the State learned in the
investigation and when it learned it, and (3) why the State viewed the evidence it
had developed as being too weak to prove that Appellant was Jay until A.V.
positively identified him. Appellant criticizes the State for not doing more, as
discussed above, to identify Appellant as Jay before Appellant turned 18.
However, the officials charged with investigating a juvenile case are not required
“to ‘do everything perceivable and conceivable to avoid delay.’” Id. Instead,
Section 54.02(j)(4)(B)(i) requires the State to exercise due diligence, a term that
suggests the investigation must be reasonable given the information that was
gathered during the investigation. See Collins v. State, 516 S.W.3d 504, 525 (Tex.
App.—Beaumont 2017, pet. denied) (citing TEX. FAM. CODE § 54.02(j)(4)(B)). In
determining whether the State exercised due diligence in proceeding against
Appellant, the trial court was entitled to consider the evidence showing that A.V.’s
intentional misidentification of Appellant delayed the State’s investigation. See id.
(stating that juvenile court was entitled to consider evidence showing that members
27
of the appellant’s family had hindered the investigation into role the appellant
played in the offense).
We conclude that the evidence offered by the State was more than a scintilla
of evidence supporting the juvenile court’s finding that, “after due diligence of the
State it was not practicable to proceed in juvenile court before the 18th birthday of
[Appellant] because the State did not have probable cause to proceed on the capital
murder charge in 2015 or 2016. Instead, new evidence developed after
[Appellant]’s 18th birthday.”6 See TEX. FAM. CODE § 54.02(j)(4)(B)(i). We also
6
Although he did so in the trial court, Appellant does not specifically challenge the
probable cause element on appeal. We note that when “evaluating a determination
of probable cause, we consider whether there are sufficient facts and
circumstances to support a prudent person’s belief that the accused child
committed the offense.” In re C.R., Nos. 01-18-00185-CV, 01-18-00186-CV, 01-
18-00187-CV, 01-18-00188, 2018 WL 4190051, *5 (Tex. App.—Houston [1st
Dist.] Aug. 31, 2018, no pet.) (citing In re J.G., 495 S.W.3d 354, 374 (Tex.
App.—Houston [1st Dist.] 2016, pet. denied)). “The probable-cause standard
‘requires more than mere suspicion but less evidence than needed to support a
conviction or support a finding by a preponderance of the evidence.’” Id. (quoting
In re C.M.M., 503 S.W.3d 692, 702 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied) (citing Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997)).
Courts apply a totality-of-the-circumstances analysis to determine probable cause.
Id. (citing Manuel v. State, 481 S.W.3d 278, 283 (Tex. App.—Houston [1st Dist.]
2015, pet. ref’d)). Here, the juvenile court also found, “Probable cause did not
exist in this case before [Appellant] turned 18 years of age on November 9, 2016
because any indications or suspicion that [Appellant] participated in the capital
murder, about which police knew before that [Appellant] turned 18, was defeated
by [A.V.’s] negative identification of [Appellant] in the photo spread.” Given the
record, the juvenile court, as the factfinder, could have reasonably inferred from
the evidence, particularly the testimony of Detectives Garcia and Murdock, that,
under the totality of the circumstances, including A.V.’s negative identification of
Appellant, that the State did not have probable cause to proceed against Appellant
until after he turned 18 when A.V. made a positive identification. See Collins v.
State, 516 S.W.3d 504, 524 (Tex. App.—Beaumont 2017, pet. denied) (holding
28
conclude that the finding was not against the great weight of the evidence. Thus,
the evidence was legally and factually sufficient to support the finding.
Having determined that the juvenile court’s challenged findings are
supported by sufficient evidence, we now review the ultimate waiver decision to
determine whether the juvenile court abused its discretion. See Moon, 451 S.W.3d
at 47. Given the evidence in the record and the trial court’s findings, we conclude
that the juvenile court’s decision to transfer Appellant to criminal district court for
prosecution as an adult was not arbitrary, but instead represented a reasonably
principled application of the legislative criteria found in Section 54.02(j). Thus,
we hold that the juvenile court did not abuse its discretion in waiving its exclusive
jurisdiction and transferring Appellant to criminal district court.
that, if juvenile court could have reasonably inferred that State acted diligently to
investigate case before accused turned 18 and could have also reasonably inferred
that investigation that occurred before accused turned 18 failed to develop
sufficient reliable evidence to allow State to develop probable cause to proceed in
juvenile court, then appeals court is not permitted to impose its own opinions even
if they might differ).
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Conclusion
We affirm the order of the juvenile court waiving jurisdiction and
transferring Appellant to district court for criminal prosecution.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Lloyd, and Caughey.
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